Intersectional discrimination –EU vs US perspectiveDr. Snjezana Vasiljevic

Columbia Law School

Columbia UniversityDr. Snjezana VasiljevicUniversity of Zagreb, Faculty of Lawsvasilje@pravo.hr

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STRUCTURE OF DOCTORAL THESIS

INTRODUCTION (divided by chapters)

hypotheses

Comparative

researchLimitation

s

Theoretical

framework

Conclusions 2

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HYPOTHESES

EU recognition of multiple

discrimination

Consistent implementatio

n of anti-discrimination law in Member

States

Hierarchy of equality

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VARIABLESInconsistent equality mechanisms

No unique anti-discrimination policy

No effective remedy

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THEORETICAL FRAMEWORK

FEMINIST THEORY

BLACK FEMINIST THEORY

(CRITICAL DISCOURSE)

THEORY OF DIFFERENCE

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FEMINIST THEORIESNo unified theoretical model applicableDifferent forms of oppression lead to the different forms of discrimination & violence against marginalised ground (Young, 2005)Different stereotypes (racism, sexism, heterosexism)Universal forms, standards and politics – unacceptable (MacKinnon, Dworkin)Other theories (biological, cultural, evolutionist) – aggression/domination – social/genetic 6

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BLACK FEMINIST THEORIES – CRITICAL DISCOURSE

White feminism ignored the experience of black women (King, 1998)White feminism forgot the notion of adjective “white”(Robinson, 2000)White feminism uses the view of white women (Crenshaw, 1989)

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THEORY OF DIFFERENCE Judith Butler (1990)

more difference we

have in society – more possibility for oppression

different experiences created by individuals (gendered

racism)

intersectional experiences

(forced sterilization, ethnic rapes,

honour crimes)

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COMPARATIVE ANALYSIS

Document analysis Statistical dataInterviews Court cases (ECJ, ECHR, national courts)Comparative legal analysis at different levels (international, EU, CoE, National – GB, Germany, Croatia)Literature review 9

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LIMITATIONS

LACK OF CASE LAW

LACK OF APPROPRIATE

LEGAL FRAMEWORK

LACK OF RESEARCH

LACK OF LITERATURE

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RESULTS/CONCLUSION

Lack of legal certainty (hierarchy of equality)Lack of trust (legislation is partial and not consistent)Lack of legal cases (ECJ, ECHR, national courts)Lack of education Lack of raising awarenessLack of reporting (e.g. protocol/rules of conduct in cases of discrimination)

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The principle of equality

“Democracy arises out of the notion that those who are equal in any respect are equal in all respects; because men are equally free, they claim to be absolutely equal (Aristotle, Politics)”.

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The principle of equality

An equal society recognizes people’s different needs, situations and goals and removes the barriers. This definition recognizes, as the current EU legal framework does not, that factors such as gender, age, disability, ethnicity, religion and sexual orientation can interact to create multiple or intersectional disadvantage. The fact that the current legislation does not expressly address multiple or intersectional discrimination leaves the most disadvantaged members of society, unable to challenge the discrimination they experience. 13

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The principle of equality –some problems

hierarchy of equalityno recognition of “intersectionality” between two or more different kinds of discriminationThe consequence of overlapping two forms of discrimination is usually double discrimination which significantly strikes the most vulnerable groups. Black, ethnic minority and migrant women tend to be invisible in society in terms of their representation, their contribution and recognition of their needs.

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INTERSECTIONALITYThe term was first used by Crenshaw (1989) She used the picture of an intersection of streets“Discrimination, like traffic through an intersection, may flow into one direction and it may flow into another. If an accident happens at an intersection it can be caused by cars travelling from any number of directions, and sometimes, form all of them. Similarly, if a black woman is harmed because she is in the intersection, her injury could result from sex discrimination or race discrimination (Crenshaw, 1989).”

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Intersectionality“multiple discrimination” describes situations where a person can be subjected to discrimination on more than one ground. Compound discrimination describes a situation where a person suffers discrimination on the basis of two or more grounds at the same time and where one ground adds to discrimination on another ground (in other words one ground gets compounded by one or more other discrimination grounds).Intersectional discrimination refers to a situation where several grounds operate and interact with each other at the same time in such a way that they are inseparable.

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IntersectionalityThe most recognizable examples of intersectional oppression are often the most tragic: ethnic or race based violence against women Example: women suffering ethnic/race and gender discrimination during the war in Rwanda and Bosnia there are so many stories about the war in Croatia & Bosnia but so little about suffering of women; was it only ethnic cleansing or sexual abuse for the purpose of deterrance or both?

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IntersectionalityIf we take into consideration different pieces of legislation in EU countries, institutional mechanisms including equality bodies as well as non-governmental-organizations we can conclude that despite the recognition reflected in anti-discrimination and equal treatment legislation, multiple discrimination, as a concept remains obscure. The main problem is that most institutions and organizations concerned with anti-discrimination legislation and policy are still focused on the single ground approach. Minority women seem to be most vulnerable to multiple discrimination.

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IntersectionalityLack of research, registered complaints and cross-sectional data contribute to the continued invisibility of the phenomenon of multiple discrimination for other disadvantaged groups as well: older ethnic minorities, black persons with a disability, etc. Multiple discrimination happens in all spheres of social life. The labor market, appears to be the sector where multiple discrimination occurs most often. In many MS, the scope of anti-discrimination legislation outside employment and occupation is limited to only gender and race/ethnic origin. New phenomenon – mobbing, bullying at the workplace (good example of multiple discrimination/intersection of sex, age, sexual orientation, disability, etc. )

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Is EU law capable of addressing multiple and intersectional discrimination yet?

Primary and secondary EU law (Article 13 of Amsterdam Treaty, Equal Treatment Directives)EU legal framework is lacking a clear definition of intersectional discrimination. However, it is possible to read the legal framework in a way that made it possible to offer adequate solutions to intersectional discrimination.

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Is EU law capable of addressing multiple and intersectional

discrimination yet?

Despite this EU directives do recognize that different grounds can intersect, in relation to gender the preamble to both the Race and the Employment Equality Directives stipulate that “in implementing the principle of equal treatment, the Community should, in accordance with Article 3 (2) of the Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.” Member States do not fully address Multiple Discrimination. 21

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EU member states addressing multidimensional problems of

equality?Austrian, German, Spanish and Romanian law contain the only specific provisions in the EU Member States’ legislation on how to handle multiple discrimination. A limited amount of case law has emerged on the issue of EU. Case law from Denmark, Latvia, Sweden, Ireland and the UK demonstrate that multiple discrimination cases are identified and do reach dispute resolution bodies.

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New devlopments in EU law Treaty of Lisbon – article 17. “...any disrimination on the grounds of nationality is forbidden!”Treaty of Lisbon – article 17a...”Council after obtaining a consent of the Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”Treaty of Lisbon – social policy...working conditions, labor market, protection of workers, equal opportunities, equal pay for equal work, etc...(article 136-142)

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RACE, ETHNICITY, COLOUR, NATIONAL MINORITIES

Religion is expressly protected as separate ground under EEDHowever, an alleged victim of religious discrimination may have an interest in associating religion with the ground of race because, as EU law currently stands, protection from race discrimination is broader in scope than protection from religious discrimination Example: Sejdic and Finci V. BiH, 2009 (105) 2

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How legal norms on intersectional discrimination can be applied to Eastern

Europe?The issue of concern is whether Western European approach to anti-discrimination policy is different from the one existing in Eastern European countries?Concerning the current equality legal framework in Eastern European countries and the state of implementation of European Union Directives, the answer is positive. Specialized bodies constructed for that specific purpose have not been consistent and effective in implementing measures defined by existing legislation neither proven to be coherent with new standards introduced by European Community law.

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How legal norms on intersectional discrimination can be applied to Eastern

Europe?

What is more significant and worries those who established anti-discrimination framework is that Eastern European countries fail in harmonizing domestic laws in the field of race and gender with each other.Gender equality norms can be described as “gender-sensitive” norms but are only gender-sensitive in terms of offering a general framework for action combating gender discrimination

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How legal norms on intersectional discrimination can be applied to Eastern

Europe?

One of the biggest gaps in the existing legislation of former and current accession countries is the lack of emphasize on individual rights protectionThe lack of full understanding of the basic concepts of equality - equality legislation in the CEE full of gaps and definitions, often literally adopted from the EU legislation.No recognition of multiple discrimination in practice

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How legal norms on intersectional discrimination can be applied to Eastern

Europe?

The possible consequence of such a wrongdoing is non-implementation of recently adopted norms of gender equality due to reason that judges and national machineries responsible for its implementation do not know how to apply certain rules

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Proving discrimination

Just

ifica

tion

defe

nce

Pres

umpt

ion of

disc

rimin

atio

n

Witn

ess

stat

emen

ts

Stat

istica

l ev

iden

ce

Ques

tionn

aire

Situ

atio

n te

stin

g

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PROVING DISCRIMINATION

Situation testing (Roma case, Gothenburg case)

Questionnaire (prituzba poslodavcu)

Statistical evidence (Saymor Smith & Perez, C-167/97, employment rights and privileges …if available statistics indicated that a considerably smaller percentage of women than men were able to satisfy the condition

Witness statements and other documents (Romanian ADA allows the use of audio and video recordings, Hungary: the same case may be litigated in different forums…courts, equality commission, ombudsperson…))

Prima facie cases: establishing presumption of discrimination (Feryn, Enderby)

Use by defendants of the “justification defense” – Defendants may argue that the principle of freedom of contract should override provisions promoting equality. ECJ holds that EU equal pay provisions override freedom of contract – equal pay is protected even if individual and collective agreements specify unequal compensation, Case C-43/75, Defrenne

Rebutting the “justification defense” – victims can answer the questions arising from the definition of exceptions under EU law

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EXAMPLE OF CROATIA –LEGAL FRAMEWORK

Gender equality act (GEA), 2003

Domestic violence act, 2003

Same-sex unions act, 2003

Gender Equality Act, 2008

Law on supression of all forms of discrimination, 2008 (entered into force on 1 January 2009)

Other laws prohibiting discrimination: Labour law, Family law, Criminal law, Media law, Law on scientific work and high education

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EXAMPLE OF CROATIA – INSTITUTIONAL MECHANISMS

Governmental Office for Equal OpportunitiesParliamentary Committee for Equal Opportunities Parliamentary Committee for Human RightsOmbudsperson for Human RightsOmbudsperson for Gender EqualityOmbudsperson for people with disabilitiesOmbudsperson for children

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EXAMPLE OF CROATIA – problems of Gender Equality Act/Anti-discrimination ActSome important areas where discrimination occurs are not included into GEA (health, education, family life, prostitution, trafficking, rural areas, public life, enterpreneurship, etc.)

Definition of multiple discrimination does not exist in GEA!!!But multiple discrimination is defined by Antidicrimination LawNew concepts are not completely definedOther forms of discrimination are not included (economic violence, glass ceiling, multiple discrimination, etc.)

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EXAMPLE OF CROATIA – problems of Gender Equality

Actprovisions on burden of proof have not been implemented!Lack of effective sanctions for infringment of GEA!!!!!!!!But, now in screening process is evident that existing gender equality legislation is full of gaps and not completely harmonised with EU lawConsequence – non implementation in practice!It is evaluated that GEA (2003) is completely harmonised with EU lawAbolished in January 2008, by the decision of Constitutional Court (absence of qualified majority)15 July 2008, new GEA entered into force (slightly better than the previous one!

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EXISTING PROBLEMSLegal value of gender equality legislationExisting discrimination of womenLack of court practiceExistance of multiple discrimination: position of Roma an other ethnic minorities women & trafficking of womenNeccessity for new unique anti-discrimination law prohibiting disccrimination on all grounds, taking into acount the problem of intersectional/multiple discrimination, providing sanctions –new antidiscrimination law entered into force on 1 january 2009!

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PRELIMINARY REFERRALS BASED ON COLEMAN CASE C 303/06

I. DOES THE CASE FALL UNDER EU LAW? Yes1. Are the parties involved covered? Yes: an employee and her employer2. Is the protected ground covered or does the issue have relevance for a protected ground? Yes: disability; the question is whether or not harassment in association with disability is coveredII. IS THE FIELD COVERED? Yes: employment. 3

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PRELIMINARY REFERRALS BASED ON COLEMAN CASE C 303/06

III. DOES EUROPEAN LAW APPLY TO THE WHOLE OR GREATER PART OF THE PERIOD IN WHICH THE DISCRIMINATION TOOK PLACE?

Yes, harassment occurred after the EED had been transposed into national lawIV. IS THERE A LEGAL ISSUE THAT NEEDS INTERPRETATION BY THE ECJ (is the key concept correctly transposed or not transposed at all)?

Yes: is the mother facing harassment on the basis of her association with disabled child?Definition of a protected ground is at issue. 3

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