Rationale for change
This change will remove unjustifiable legal barriers that individuals face when trying to prove discrimination on multiple equality grounds.
Individuals experiencing intersectional multiple discrimination face a number of difficulties in seeking legal redress; this is primarily due to the fact that current legal processes solely focus on one prohibited factor at a time and are unable to adequately address in tandem discrimination complaints on more than one ground.
For example, complainants subjected to multiple discrimination may face difficulties in identifying an actual or hypothetical comparator with the same characteristics, as required when proving direct discrimination.
This change to the law, would, for example, allow an older Asian woman, who is not appointed to a job, to seek redress in circumstances where she believes that she has been subjected to discrimination due to a combination of her age and race. In these circumstances, she would be able to allege that a younger Asian woman or an older Asian man was/would have been appointed to the job.
The difficulties faced by individuals claiming intersectional multiple discrimination is clear from the Court of Appeal decision in the case of Bahl. In this case, an Asian woman claimed that she had been subjected to discriminatory treatment on the grounds that she was Asian and on the grounds that she was a woman. The judgment made clear that, in cases of intersectional discrimination, each ground had to be considered and ruled on separately, even if the claimant experiences them as inextricably linked.
Whilst recent tribunal decisions in Great Britain have shown an increased willingness on the part of tribunals to consider whether a particular equality characteristic was part of the reason for the treatment received, the introduction of express and specific legislative provisions prohibiting intersectional multiple discrimination would provide clarity and certainty for individuals that this legislative gap had been addressed.
The legal difficulties facing individuals with multiple identities in obtaining legal redress under equality law were also recognised by the UK Government, prior to its decision to repeal the provisions in the Equality Act 2010 relating to dual discrimination.
In particular, it indicated that ‘a black woman or man of a particular religion may face discrimination because of stereotyped attitudes to that combination’ and that ‘it is difficult, complicated and sometimes impossible to get a legal remedy in those cases because the law requires them to separate out their different characteristics and bring separate claims’.
Evidence of multiple discrimination
Our recommendation also reflects the need for stronger legal protection in light of the clear evidence that individuals experience discrimination because of a combination of equality grounds.
For example, a recent NICEM research report (2013) on the experiences of ethnic minority women in Northern Ireland has highlighted the particular barriers that minority ethnic women face. It is of note that 10% of respondents who believed that they had been discriminated against in the workplace, considered that it was due to a combination of being an ethnic minority and a woman. Further, 12.3% of respondents who believed that they had been discriminated against when seeking a job, felt that it was due to a combination of being both a woman and an ethnic minority or migrant.
Further, an EU report (2010) has found that people belonging to ethnic minorities are almost five times more likely to experience multiple discrimination than members of the majority population. Research in Great Britain (2012) concerning the experiences of black and minority ethnic gay people has revealed that public sector organisations rarely consider multiple identity issues resulting in a reluctance by individuals to access services.
In addition, statistics collected by the Equality Commission also highlight that in many instances, individuals believe that they are discriminated against on more than one equality ground. For example, over a twelve month period (1 April 2013 - 31 March 2014), we received 113 hybrid race discrimination enquiries /applications. These represented complaints where individuals were alleging discrimination due to a combination of equality grounds including race.
International recommendations and approaches
Our recommendation is also in line with the recommendations of international human rights monitoring bodies, and the approach embraced by other jurisdictions.
In particular, the need for multiple discrimination provisions to be included in equality legislation has been highlighted by international human rights monitoring bodies, including the Committee on the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW Committee) and the Advisory Committee on the Framework Convention for the Protection of National Minorities.
For example, the failure of the current UK Government to introduce protection against multiple discrimination was criticised by the CEDAW Committee in 2013. It was particularly concerned that the legislative framework in Northern Ireland did not provide for multiple discrimination and recommended a revision of the legislation to provide for multiple discrimination.
In addition, the European Commission in 2010 recommended that Member States include protection against discrimination on two or more grounds in their domestic equality legislation.
The extension of protection against multiple discrimination on more than two grounds has already been embraced by other jurisdictions; including six EU Member States, Canada and South Africa.
More recently the EU Agency for Fundamental Rights (FRA) has recommended that EU Member States, do not wait for harmonisation at EU level “but should instead tackle multiple discrimination, including multiple discrimination involving sex, at national level in an efficient and encompassing way.”
Developments in Great Britain
The Equality Act 2010 originally contained a dual discrimination provision, designed to enable people to bring claims where they have experienced less favourable treatment because of a combination of two protected characteristics. The provisions for dual discrimination in the Equality Act 2010 were limited to claims of direct discrimination only and to a combination of only two relevant protected characteristics. The provisions did not extend to indirect discrimination or harassment.
In our response to the Discrimination Law Review consultation on a Single Equality Bill in 2007, we made it clear that we recommended an adaptation of the definition of direct discrimination to provide for disadvantage on any combination of grounds.
Further, in our response to the Government Equalities Office (‘GEO’) consultation (pdf)
on ‘assessing the impact of a multiple discrimination provision’ in 2009, we raised concerns in relation to the proposal to restrict claims to a combination of no more than two protected characteristics and recommended that the GEO monitor the impact of such a restriction.
We also expressed concern in relation to the proposal to limit multiple discrimination claims to direct discrimination only and not to enable claims of harassment to be brought on a combined basis.
It is of note that the Joint Committee on Human Rights, whilst welcoming the UK Government’s original proposal to widen protection to cover discrimination on a combination of two grounds, expressed concern that this protection was to be limited to direct discrimination. It was of the view that introducing provisions prohibiting combined discrimination on two grounds should not be an excessive burden to employers and recommended that serious consideration be given to extending protection to more than two grounds in the future.
Despite being broadly welcomed, these provisions on dual discrimination did not come in force and in April 2011 the UK Government stated that although it had taken action to reduce the disproportionate cost of the regulations for business, there was still more to be done and that it would not bring forward the dual discrimina¬tion provisions.
Finally, as this legislative gap exists across all equality strands, we recommend provisions to prohibit multiple discrimination are introduced across all equality grounds, including race.