Multiple Discrimination: Intersectionality and Conflicts with Other Grounds

1. Postgraduate Course Feedback Multiple Discrimination, Intersectionality and conflicts with other grounds Dr Erica Howard, Middlesex University e.howard@mdx.ac.uk Profile: http://www.mdx.ac.uk/about-us/our-people/staff-directory/howard-erica

2. Stop and search used 'disproportionately' on black and Asian people Multiple discrimination BBC culture WAS biased against its older women (Daily Mail, UK, 15 January 2015) Stop and search used 'disproportionately' on black and Asian people

3. Multiple Discrimination Multiple discrimination Compound or additive: one ground compounds or adds to another ground Intersectional: two or more inseparable grounds intersecting

4. EU Anti-discrimination Directives • Directives 2000/43/EC and 2000/78/EC (cover racial or ethnic origin, religion or belief, disability, age and sexual orientation): • “women are often victim of multiple discrimination” (Recitals 14 and 8 respectively) • Duty to report, ‘in accordance with the principle of gender mainstreaming’, on the impact on women and men (articles 17 and 19 respectively) • Gender Directives (2004/113/EC and 2006/54/EC): • No reference to multiple discrimination • Added problem: different levels of protection for different grounds

5. COM (2008) 426 • Proposal COM (2008) 426 for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation • Explanatory Memorandum: • “Attention was also drawn to the need to tackle multiple discrimination, for example by defining it as discrimination and by providing effective remedies. These issues go beyond the scope of this Directive but nothing prevents Member States taking action in these areas”.

6. CJEU case Law • Case C-415/10 Galina Meister v Speech Design Carrier Systems GMBH, 19 April 2012: discrimination on grounds of age, sex and ethnic origin • Case C-152/11 Johann Odar v Baxter Deutschland GMBH, 6 December 2012: direct age discrimination and indirect disability discrimination • Case C-363/12 Z v a Government Department and the Board of Management of a Community School 18 March 2014: gender, disability and family status

7. Further information • Howard, E. (2011) Multiple Discrimination in Law, ‘Think Equal, Symposium on Multiple Discrimination’, 1/11/2011, National Commission for the Promotion of Equality, Malta: http://socialdialogue.gov.mt/en/NCPE/Documents/Projects_and_Specific_Initiatives/Think_Equal/paper_erica_howard.pdf • Monaghan, K. (2011), Multiple and Intersectional discrimination in EU law, 13, European Anti-discrimination Law Review, 20-32: http://ec.europa.eu/justice/discrimination/files/antidiscrimination_lawreview13_en.pdf • Schiek, D. and Lawson, A. (2011) (eds.) EU Non-Discrimination Law and Intersectionality (Farnham, Ashgate) • Schiek D. and Chege, V. (2009) (eds.) EU Non-Discrimination Law, Comparative Perspectives on Multidimensional Equality Law (London/New York, Routledge-Cavendish)

8. Religion and Belief and the intersection with other rights • Dir 2000/78/EC: covers religion or belief and sexual orientation discrimination • These rights can clash: • with each other • with the right to freely manifests one’s religion or belief which is guaranteed under Art 10 EUCFR and Art 9 ECHR • Right to manifest one’s religion or belief is NOT ABSOLUTE: can be restricted ( Art 52(1) EUCFR and 9(2) ECHR) if this is necessary for the protection of the rights of others. Includes right of other to be free from sexual orientation discrimination • Right to non-discrimination: Art 21 EUCFR and Art 14 ECHR: religion and belief and sexual orientation covered

9. European Court of Human Rights • Pichon and Sajous v France, App. No. 49853/99, 2 October 2001 • Eweida and Others v the United Kingdom, App. Nos. 48420/10, 59842/10, 51671/10 and 36516/10 and 59842/10, 15 January 2013 suggest that requirement to provide goods and services to the public in a non-discriminatory way is either not an interference with the rights under Article 9 ECHR or, if it is, that it is justified by the goal of combating discrimination. Therefore, there is no right to discriminate

10. Principles for the practical solution of apparent conflicts • principle of non-discrimination • principle of neutrality and impartiality • principle of respect for the right of others to believe • principle of pluralism and tolerance

11. Principles for the practical solution of apparent conflicts • principle of institutional and personal autonomy • principle of proportionality • principle that there is no hierarchy of rights • principle of legality

12. ground rules for negotiating differences outside the courts • good faith and reciprocity • mutual respect • willingness to listen to all views and to engage in mediation, negotiation and conciliation • avoid essentialising religions or beliefs or misattributing certain views to entire groups • a commitment to invoking legal cases in a accurate and socially-contextualised way

13. Religion and Belief and the intersection with other rights • A. Donald and E. Howard, The right to freedom of religion or belief and its intersection with other rights (research paper for ILGA-Europe, Jan 2015): http://www.ilga-europe.org/sites/default/files/Attachments/the_right_to_freedom_of_religion_or_belief_and_its_intersection_with_other_rights__0.pdf • E. Howard, (2015) ‘Religious Rights versus Sexual Orientation Discrimination: a Fair deal for Everyone’ Religion and Human Rights, 10, 2, 128-159