1. Intersectional discrimination –EU vs US perspective Dr
Intersectional discrimination –EU vs US perspective Dr. Snjezana Vasiljevic Columbia Law School Columbia University
University of Zagreb, Faculty of Law
Dr. Snjezana Vasiljevic
04/23/2012

2. STRUCTURE OF DOCTORAL THESIS
INTRODUCTION (divided by chapters)
hypotheses
Comparative research
Limitations
Theoretical framework
Conclusions
04/23/2012

3. HYPOTHESES 04/23/2012 EU recognition of multiple discrimination
Consistent implementation of anti-discrimination law in Member States
Hierarchy of equality
04/23/2012

4. VARIABLES Inconsistent equality mechanisms
No unique anti-discrimination policy
No effective remedy
04/23/2012

5. THEORETICAL FRAMEWORK
FEMINIST THEORY
BLACK FEMINIST THEORY (CRITICAL DISCOURSE)
THEORY OF DIFFERENCE
04/23/2012

6. FEMINIST THEORIES No unified theoretical model applicable
Different 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
04/23/2012

7. 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)
04/23/2012

8. 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)
04/23/2012

9. COMPARATIVE ANALYSIS Document analysis Statistical data Interviews
Court cases (ECJ, ECHR, national courts)
Comparative legal analysis at different levels (international, EU, CoE, National – GB, Germany, Croatia)
Literature review
04/23/2012

10. LACK OF APPROPRIATE LEGAL FRAMEWORK
LIMITATIONS
LACK OF CASE LAW
LACK OF APPROPRIATE LEGAL FRAMEWORK
LACK OF RESEARCH
LACK OF LITERATURE
04/23/2012

11. 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 awareness
Lack of reporting (e.g. protocol/rules of conduct in cases of discrimination)
04/23/2012

12. 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)”.
04/23/2012

13. 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.
04/23/2012

14. The principle of equality –some problems
hierarchy of equality
no recognition of “intersectionality” between two or more different kinds of discrimination
The 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.
04/23/2012

15. INTERSECTIONALITY
The 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).”
04/23/2012

16. 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.
04/23/2012

17. Intersectionality
The 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?
04/23/2012

18. Intersectionality
If 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.
04/23/2012

19. Intersectionality
Lack 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. )
04/23/2012

20. 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.
04/23/2012

21. 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.
04/23/2012

22. 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.
04/23/2012

23. 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 )
04/23/2012

24. RACE, ETHNICITY, COLOUR, NATIONAL MINORITIES
Religion is expressly protected as separate ground under EED
However, 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)
04/23/2012

25. 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.
04/23/2012

26. 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
04/23/2012

27. No recognition of multiple discrimination in practice
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 protection
The 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
04/23/2012

28. 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
04/23/2012

29. Proving discrimination
Justification defence
Presumption of discrimination
Witness statements
Statistical evidence
Questionnaire
Situation testing
04/23/2012

30. 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
04/23/2012

31. 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
04/23/2012

32. EXAMPLE OF CROATIA – INSTITUTIONAL MECHANISMS
Governmental Office for Equal Opportunities
Parliamentary Committee for Equal Opportunities
Parliamentary Committee for Human Rights
Ombudsperson for Human Rights
Ombudsperson for Gender Equality
Ombudsperson for people with disabilities
Ombudsperson for children
04/23/2012

33. EXAMPLE OF CROATIA – problems of Gender Equality Act/Anti-discrimination Act
Some 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 Law
New concepts are not completely defined
Other forms of discrimination are not included (economic violence, glass ceiling, multiple discrimination, etc.)
04/23/2012

34. EXAMPLE OF CROATIA – problems of Gender Equality Act
provisions 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 law
Consequence – non implementation in practice!
It is evaluated that GEA (2003) is completely harmonised with EU law
Abolished 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!
04/23/2012

35. EXISTING PROBLEMS Legal value of gender equality legislation
Existing discrimination of women
Lack of court practice
Existance of multiple discrimination: position of Roma an other ethnic minorities women & trafficking of women
Neccessity 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!
04/23/2012

36. PRELIMINARY REFERRALS BASED ON COLEMAN CASE C 303/06
I. DOES THE CASE FALL UNDER EU LAW? Yes
1. Are the parties involved covered? Yes: an employee and her employer
2. 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 covered
II. IS THE FIELD COVERED? Yes: employment.
04/23/2012

37. 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 law
IV. 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.
04/23/2012