Handbook on European non-discrimination law – Contents
- Addressing discrimination from the perspective of a single ground fails to tackle adequately various manifestations of unequal treatment.
- ‘Multiple discrimination’ describes discrimination that takes place on the basis of several grounds operating separately.
- ‘Intersectional discrimination’ describes a situation where several grounds operate and interact with each other at the same time in such a way that they are inseparable and produce specific types of discrimination.
People with differing backgrounds often face multiple discrimination, because everyone has an age, a gender, an ethnic origin, a sexual orientation, a belief system or religion; everyone has some state of heath or may acquire a disability.
No group characterised by a specific ground is homogenous. Every person has a unique pattern of characteristics, which have impact on their relationships with other people, and may involve domination by some over others.
It is increasingly recognised that addressing discrimination from the perspective of a single ground fails to capture or adequately tackle the various manifestations of unequal treatment that people may face in their daily lives.
There is no single settled terminology – ‘multiple discrimination,’ ‘cumulative discrimination,’ ‘compound discrimination,’ ‘combined discrimination’ and ‘intersectional discrimination’ are often used interchangeably, although these terms have slightly different implications.
Most often ‘multiple discrimination’ describes discrimination that takes place on the basis of several grounds operating separately, while ‘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 and produce specific types of discrimination.
Under ECHR law, both Article 14 of the ECHR and additional Protocol No. 12 prohibit discrimination on a large number of grounds, making a claim on more than one ground theoretically possible. Furthermore, the non-exhaustive list of grounds of discrimination allows the ECtHR to extend and include grounds not expressly mentioned. However, the Court does not use the terms multiple or intersectional discrimination.
Example: In N.B. v. Slovakia, concerning forced sterilisation of a Roma woman at a public hospital, the applicant expressly complained that she was discriminated against on more than one ground (race/ethnic origin and sex). The ECtHR made no explicit reference to discrimination or multiple discrimination. It stated, however, that “the practice of sterilisation of women without their prior informed consent affected vulnerable individuals from various ethnic groups”. It found a violation of Articles 3 and 8 of the ECHR.
In more recent cases, the ECtHR seems to tacitly recognise the phenomenon of intersectional discrimination, and it is also repeatedly urged to do so by different third-party interveners. The ECtHR clearly takes into consideration multiple-grounds approach, although still without using the terms multiple or intersectional discrimination.
Example: In B.S. v. Spain, a female sex worker of Nigerian origin and legally resident in Spain, alleged that the Spanish police mistreated her physically and verbally on the basis of her race, gender and profession. She claimed that, unlike other sex workers of European origin, she was subject to repeated police checks and a victim of racist and sexist insults. In this case, two third- party interveners – the AIRE Centre and the European Social Research Unit of the University of Barcelona – asked the ECtHR to recognise intersectional discrimination, which required a multiple-grounds approach. The Court found a violation of Article 3, but this time went further to separately examine whether there was also a failure to investigate a possible causal link between the alleged racist attitudes and the violent acts of the police. Consequently, the ECtHR found a violation of Article 14, because the domestic courts failed to take into account the applicant’s particular vulnerability inherent in her position as an African woman working as a prostitute. The Court thus took a clearly intersectional approach, however, without using the term ‘intersectionality’.
Example: The case S.A.S. v. France concerns a ban on wearing a religious face covering in public. In this case, third-party interveners (Amnesty International and a non-governmental organisation, Article 19) also pointed to the risk of intersectional discrimination against Muslim women, which may express itself particularly in the form of stereotyping of sub-groups of women. The ECtHR acknowledged that the ban had specific negative effects on the situation of Muslim women who, for religious reasons, wished to wear the full-face veil in public, but considered this measure to have an objective and reasonable justification.
Example: In Carvalho Pinto de Sousa Morais v. Portugal, the applicant brought a civil action against a hospital for medical negligence during her gynaecological surgery. The Administrative Court ruled in her favour and awarded her compensation. On appeal, the Supreme Administrative Court upheld the first-instance judgment but reduced the amount of damages.
The applicant complained that the Supreme Administrative Court’s judgment was discriminatory on the grounds of her sex and age. The Supreme Administrative Court had relied on the fact that the applicant was already 50 years old and had two children at the time of the surgery. It considered that at this age sexuality is not as important as in younger years and that its significance diminishes with age. The Supreme Administrative Court also stated that she “probably only needed to take care of her husband”, considering the age of her children. The ECtHR observed that the issue was not considerations of age or sex as such, but rather the assumption that sexuality was not as important for a 50-year old woman and mother of two children as for someone of a younger age. That assumption reflected a traditional idea of female sexuality as being essentially linked to child-bearing purposes, and thus ignored its physical and psychological relevance for the self-fulfilment of women. Apart from being judgemental, it omitted to take into consideration other dimensions of women’s sexuality in the concrete case of the applicant. In other words, the Supreme Administrative Court had made a general assumption without attempting to look at its validity in the concrete case. The wording of the Supreme Administrative Court’s judgment could not be regarded as an unfortunate turn of phrase. The applicant’s age and sex appeared to have been decisive factors in the final decision, introducing a difference in treatment based on those grounds. Therefore, the ECtHR found a violation of Article 14 of the ECHR in conjunction with Article 8.
Under EU law, the only mention of multiple discrimination at present can be found in recitals to the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC) stating merely that “women are often the victims of multiple discrimination”.
Similarly to Article 14 of the ECHR, Article 21 of the EU Charter contains an open list of grounds. Extending grounds of discrimination is, however, impossible under EU secondary law because the grounds covered by the equality directives are listed exhaustively. The CJEU has repeatedly emphasised that it is not within its power to extend those grounds, and it has so far not invoked Articles 20 or 21 of the EU Charter to overturn this position. This means that it would not be possible to create new grounds to reflect the specific situations of discrimination experienced by certain groups, such as black women.
Another possibility is to combine grounds within the existing list without regarding this as a new subgroup. However, this approach has its limitations, because the scope of each directive is different. It is difficult to establish whether the open scope of Articles 20 and 21 would allow a broader interpretation, since the CJEU has not yet referred to them in such cases.
Example: In Parris v. Trinity College and Others, the CJEU had to address the possibility of multiple discrimination, since the referring court specifically posed this question. Dr Parris requested that on his death the survivor’s pension provided for by the pension scheme should be granted to his civil same-sex partner. He was refused on the basis that they entered into a civil partnership only after he had turned 60, thus not meeting the pension scheme requirements. The civil partnership, however, was established in the United Kingdom in 2009, once Dr Parris was over 60 years old; in Ireland, it was only recognised from 2011 onwards. This meant that any homosexual person born before 1 January 1951 would not be able to claim a survivor’s benefit for his civil partner or spouse under this scheme.
The CJEU ruled, however, that if a measure is not capable of creating discrimination on any of the grounds prohibited by Directive 2000/78/ EC – when these grounds are taken alone – then it cannot be considered to constitute discrimination as a result of the combined effect of such grounds, in this case sexual orientation and age.
Thus, under EU law, while discrimination may indeed be based on several protected grounds, the CJEU considered that there could be no new category of discrimination consisting of the combination of more than one of those grounds.
In international law, intersectionality is officially recognised by the CEDAW Committee as a pertinent concept for understanding the scope of State Parties’ obligation to eliminate discrimination. The Committee stated that: “States parties must legally recognise and prohibit such intersecting forms of discrimination and their compounded negative impact on the women concerned.”
124. European Commission (2007), ‘Tackling Multiple Discrimination. Practices, policies and laws’.
125. ECtHR, N. B. v. Slovakia, No. 29518/10, 12 June 2012. See also ECtHR, V.C. v. Slovakia, No. 18968/07, 8 November 2011.
126 Ibid., para. 121.
127. ECtHR, B.S. v. Spain, No. 47159/08, 24 July 2012.
128. ECtHR, S.A.S. v. France [GC], No. 43835/11, 1 July 2014 (also described in Section 5.8).
129. ECtHR, Carvalho Pinto de Sousa Morais v. Portugal, No. 17484/15, 25 July 2017.
130. As of April 2017.
131. CJEU, C-13/05, Sonia Chacón Navas v. Eurest Colectividades SA [GC], 11 July 2006, para. 56; C-303/06, S. Coleman v. Attridge Law and Steve Law [GC], 17 July 2008, para. 46; C-310/10 Ministerul Justiţiei și Libertăţilor Cetăţenești v. Ştefan Agafiţei and Others, 7 July 2011; C-406/15, Petya Milkova v. Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen
kontrol, 9 March 2017.
132. CJEU, C-443/15, David L. Parris v. Trinity College Dublin and Others, 24 November 2016.
133. UN, CEDAW (2010), General Recommendation 28 on the Core Obligations of States Parties under Art. 2, CEDAW/C/GC/28, 16 December 2010, para. 18.
2.3. Multiple and intersectional discrimination
2.4. Harassment and instruction to discriminate
2.5. Special or specific measures