Intersectional discrimination: Impossible to translate into case law?

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‘Intersectional discrimination’ is a concept introduced in both the legal field and other domains like sociology, anthropology, psychology, and philosophy. It is widely discussed in legal doctrine, but the practical implementation of the concept in European jurisprudence is currently still lacking. This blog post discusses its added value in (EU) anti-discrimination law and the method used by the South African Constitutional Court (‘SACC’) to deal with cases involving intersectional discrimination.

Definition and origin

Intersectional discrimination concerns ‘discrimination which is based on several grounds operating and interacting with each other at the same time, and which produces very specific types of discrimination.’ A key element in the experience of the intersectional group is the dynamic of sameness and difference. The group is at the intersection of different other groups with whom they share disadvantages. Yet at the same time, its experience is distinctively different from those other groups.

A clear illustration of this phenomenon can be seen in the DeGraffenreid v General Motors case, at the origin of the intersectional doctrine. In DeGraffenreid, five black female employees of General Motors challenged the company’s ‘last hired, first fired’ policy because it discriminated against them on the basis of race and sex. Black women were the ones more severely disadvantaged by this rule as, prior to the legal ban on discrimination in employment (Title VII of the Civil Rights Act, 1964), no black women were hired as employees. Both white women (with whom black women shared the experience of patriarchy, sexism, gender bias and lower pay) and black men (with whom black women shared the experience of racism, segregation, lower levels of employment and pay) were already working in the company before 1964, which made the experience of black women different from these groups. Because of this intersectional discrimination, the women concerned could not show discrimination on the basis of race or discrimination on the basis of sex separately, and their claim was denied.

Buzzword or added value?

Current EU anti-discrimination law does not explicitly cover intersectional discrimination, although some authors claim that it should. What would be the added value of the introduction of intersectional discrimination in EU anti-discrimination law?

Firstly, its practical use cannot be underestimated, as applicants often fail to prove that they were discriminated against when they can only have recourse to the single-ground discrimination model.  This was the problem in the Parris v Trinity College Dublin case, where the Court of Justice of the European Union (‘CJEU’) refused to adopt an intersectional approach. The case concerned David Parris, a man who was in a long-term relationship with his same-sex partner. In 2011, Ireland passed the Civil Partnership Act that legalized same-sex marriages. However, under the occupational benefit scheme of Parris’s employer, partners needed to enter into a civil partnership before they turned 60. Due to this rule, Mr. Parris’s partner did not have the right to receive a survivor’s pension. They had not entered into a civil partnership before he turned 60, as there was no possibility to do so under Irish law for same-sex couples. Because the CJEU only assessed the discrimination on the basis of the grounds of sexual orientation and age separately, it held that there was no discrimination. The CJEU failed to see that this was clearly an intersectional discrimination case where there was discrimination against same-sex partners from a certain age (born before 1951) who were not in the possibility to enter into a civil marriage before they turned 60. This discrimination was not faced by all same-sex partners (e.g. young gay men) or all elderly (e.g. heterosexual old couples) and was thus specific to the intersectional group.

A second advantage is the possibility to award higher damages in intersectional cases, as discrimination on more than one ground often has a stronger effect of exclusion than discrimination on only one ground.

Adopting an intersectional analysis will also make it easier for judges to grasp the exact nature of the discrimination. In hijab cases (i.e. bans on the Muslim headscarf or religious signs in general) for example, all the focus of the discrimination analysis typically lies squarely on the religious element, thereby overlooking the sexist and xenophobic element in this type of discrimination.

Three main tendencies in the South African case law

Intersectional discrimination has also encountered critiques from legal scholars, like the lack of clear legal methodology, which hinders its implementation in case law. Yet, the SACC’s case law shows that it is possible to adopt a clear intersectional methodology.

Section 9(3) of the South African Constitution contains a non-discrimination clause outlawing discrimination based on ‘one or more’ grounds. The non-exhaustive list of protected grounds and the possibility to include more than one ground in a discrimination claim makes Section 9(3) very suitable for intersectional cases.

An examination of the jurisprudence of the SACC from 1994 until 2021 (May) shows that the SACC rendered 93 discrimination cases, of which 33 were intersectional cases. In 14 of the 33 cases, the SACC undertook an intersectional analysis. Three main tendencies of the SACC when dealing with intersectional cases could be distilled from this jurisprudence.

A first tendency is the use of the ‘contextual comparison’ approach by the SACC when defining the appropriate comparators in intersectional cases (e.g. Hassam v Jacobs). In the first stage of this contextual comparison, the SACC delineates the grounds of discrimination with the help of comparators who do not share one, some or all of the claimant’s personal characteristics. For example, in a hijab case where Muslim women with a foreign ethnic origin are the victims, the appropriate comparators would be the following:

People not sharing one of the claimant’s personal characteristics:

    • Muslim men with foreign ethnic origin
    • Non-Muslim women with foreign ethnic origin
    • White Muslim women

People not sharing two of the claimant’s personal characteristics:

    • Non-Muslim men of a foreign ethnic origin
    • White non-Muslim women
    • White Muslim men

People not sharing any of the claimant’s personal characteristics:

    • Others, e.g. white non-Muslim men

In the second stage of the contextual comparison, the SACC examines whether the discrimination is unfair by looking at the relatively privileged position of the comparators. In both stages, the Court appreciates historical, sociological, statistical, and economic evidence to sufficiently assess the context.

A second tendency in the SACC’s case law is the way it recognizes unspecified grounds (grounds not explicitly mentioned in Section 9(3)) as analogous grounds via ‘the human dignity test’. When the differentiation is based on an unspecified ground, the SACC will need to assess whether this amounts to (unfair) discrimination. The legal test defined in Harksen obliges the Court to objectively examine whether ‘the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.’

In practice, the Court will first analyse the groups to which the intersectional subgroup belongs and assess whether they suffer from stereotyping, stigma and prejudice. In addition, the Court considers whether (i) there are historical examples where the personal attribute has been used to impair human dignity; (ii) the attribute is an immutable personal characteristic or one that is difficult to change; and (iii) the group lacks political power. During the second step, the Court takes into account whether the measure is based on a premise about the intersectional subgroup that impairs their human dignity.

A third and last tendency that can be distinguished is the way the SACC tries to facilitate the burden of proof of the applicant. When there is an intersectional case with one specified ground and one or more unspecified grounds, the applicant only needs to prove that there is prima facie discrimination on the basis of the specified ground to trigger the presumption of discrimination and unfairness. The enlisted ground is thus used as a primordial ground to prove unfair discrimination.

Final thoughts

The analysis of the South African case law shows that it is possible to use the rather complex theoretical concept of intersectional discrimination in practice. Interestingly, the SACC has even considered intersectionality as an interpretative method that guides the interpretation of all fundamental rights in its Constitution. The CJEU could certainly use elements from the South African approach in their own case law to enhance the protection against discrimination in EU law. There is especially potential to use Article 21 of the Charter of Fundamental Rights of the European Union to a greater extent in intersectional cases. Because of its open-ended list of protected characteristics, it closely resembles Section 9(3) of the South African Constitution.

Esther Forson is a lawyer at Eubelius and a former teaching assistant at the Leuven Centre for Public Law (KU Leuven).

This post is written pursuant to a thesis on intersectional discrimination during a Specialized Master in European law at the ULB/IEE, under the supervision of Prof. Bribosia.  The research considered the practical implementation of intersectional discrimination in the case law of the Court of Justice of the European Union by using a comparative law method.

 


Esther FORSON, "Intersectional discrimination: Impossible to translate into case law?", Leuven Blog for Public Law, 4 January 2022, https://www.leuvenpubliclaw.com/intersectional-discrimination-impossible-to-translate-into-case-law (geraadpleegd op 17 January 2022)

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