1. Eithne McLaughlin Romana Khaoury Marguerite Cassin Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Complex forms of discrimination : an assessment of the development and potential application of definitions of institutional and systemic discrimination

2. communicate and thin out Sociology of Inequality understandings of maintenance and recreation of inequality and privilege Assess the potential for transfer of sociological definitions to equality law respond to lack of development of concepts of discrimination in national and international law prompted by limitations of current anti-discrimination law and practice and persistence of group inequalities (especially ethnicity) Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Objectives omission vs comission

3. simple discrimination = one to one action intended to have adverse impact on another because of their possession of certain social traits + hate crimes complex forms of discrimination = diffuse, implicit, collective patterns in and of social practices and their associated worldviews which exclude, devalue or disadvantage minority group individuals difference is ignored when it is relevant or invoked when it is irrelevant Identify the Points @ which routine social differentiation becomes discrimination ie disadvantageous treatment Statistical evidence of persistent otherwise inexplicable underrepresentation of a minority group = prima dacie evidence that complex forms of discrimination are present within an organisation or society Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Working Definition of Complex Forms of Discrimination

4. overview of the limitations of current unlawful discrimination approach and options for reform problematic status of indirect discrimination reasons for development and application of definitions of complex forms of discrimination How embedded to purpose are definitions of phenomena? knowledge transfer to law and policy applications? Overview of the evolution of definitions of complex forms of discrimination in sociology over the last 50 years Synhesis of definitions of systemic and institutional discrimination Unresolved issues intent? ?reverse? discrimination Illustration of complex discrimination processes and experiences in recent Canadian human rights cases Conclusion a duty on emnployers and service providers to progressively reduce persistent underrepresentation valuable element of forth generation equality law Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Structure of the paper

5. objectives of equality regime reform a negative or positive duty re complex forms of discrimination? Impact on definition and invocation of indirect discrimination limitations of current anti-discrimination UK and European models Are concepts & practices of acccomodation, barriers, supports sufficient for addressing complex forms of discrimination? complex forms of discrimination and processes of Othering: us and them; insiders and outsiders when routine social differentiation becomes diacriminatory ie disadvantageous treatment Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Options for reforming the UKs equality regime

6. limited achievement of the negative anti-discrimination equality model unlawful discrimination as defined in law small - relative to universe of discriminatory behaviours and processes (problem of scope) radical potential of indirect discrimination has been neutered by conservative judicial application and sparsity of cases @ European level possibility prohibition on direct discrimination shunt discriminatory processes and practices from its sphere to that of indirect and other complex forms of discrimination, that of (problem of compliance avoidance? Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast 9 reasons for an interest in complex forms of discrimination

7. Fewer plaintiffs present with prima facie evidence of direct discrimination but equality slow to be achieved breathe new life into indirect discrimination build further bridges between negative and positive models and measures periodic development of legal definitions generally required to maintain relevance utility, and scope of definitions of prohibited behaviours relative to the universe of behaviours in the world we seek to regulate through the law plaintiffs present with more complex circumstances and with multiple identities Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Reasons contd

8. limitation of post hoc redress for unlawful discrimination as driver of social change Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Problem of responsiveness

9. too big a stretch? better to name and define exclusionary processes in their own right Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Why not develop additional definitions of discrimination?

10. irrelevance of labour law to majority of minority group individuals Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Problem of entry and relevance

11. Complex forms of discrimination one type already recognised as indirect discrimination: Apparently unbiased universal standards create adverse impact and disadvantage by ignoring a social difference when it should be taken into account for justice and fairness or the converse And/o harassment, bullying and victimisation prima facie evidence = persistent patterns of minority group under presentation Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Evil motive effects discrimination

12. positive equality model combines –ve and +ve equality duties on public sector; -ve on private; reliance on mainstreaming technologies; + social minimum or social rights improved use and application of indirect discrimination provision. to take reasonable steps to progressively reduce…. affirmative action in market sphere Social minimum, social rights Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Equality law reform paths

13. typically they involve: double standards in relation to opportunities for the acquisition of additional human capital; unequal access to fringe benefits reduced opportunities re public expressions of respect, credit and recognition Double standards re penalties & rewards Higher standards of performance & behaviour routinely required The Noral authority of minority group managers/supervisors will be undermined by those higher & lower in the food chain problem of insurrection Minority group members expected to accept devaluation & minimisation of their contribution Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Complex forms of discrimination manipulate reward and penalty subsystems within organisations:

14. defining us and them insiders and outsiders differential thresholds for reward and punishment and satisfaction the double standard insurrection destruction of corridor reputations focused on personalities, integrity and judgement higher levels of performance required generally Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Practices of othering and exclusion

15. The behaviours and practices now termed systemic and institutional discrimination have been identified and documented in the social research literature for 50 years ? Knowledge transfer? Definitions fit for purpose? Can they travel? Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast

16. Are definitions context dependent i.e. capacity for transfer between spheres? Judgement of adequacy of concepts and definitions should be against purpose? Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast contd

17. achieve equality of opportunity achieve real equality of opportunity achieve reduction in inequalities of condition Achieve similar distributions of diversity in all spheres of life eliminate discrimination eliminate unlawful discrimination Achieve higher levels of social mobility End the determinative influence of the accident of birth Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Objectives of reform

18. diffuseness problematic for freeze frame law diffuse in time and space i.e. shared worldviews and norms e.g. cultures in which invokation and exaggeration of group difference create devaluation and disadvantage non-recognition in law, part of the denial of persistent inequalities denial needed because these group differences are not attributable to dysfunctionality in the minority group and/or cannot be explained away by the bad apple thesis Fewer plaintiffs present with prima facie evidence of direct discrimination but equality slow to be achieved Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Diffuseness re Agency

19. direct vs indirect past in present vs side effect individual vs systemic structural vs systemic Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast The development of concepts of complex forms of discrimination and prejudice

20. Gynther system pervading patterns [which] exclude, disadvantage or devalue members of minority groups which can be legally identified and protected (Gynther, 2003, p.50) Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast

21. principle of accumulation relationship between inequalities of condition and individual capabilities for competing and winning opportunities Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Myrdal (1944) An American dilemma

22. institutional racism interlocking and cumulative – internal colonialsim institution? Bounded organisation or a social system/ structure? Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Stokey, Carmichael and Hamilton (1967) Black Power

23. conformity sufficient for inequality to be recreated conformity sin of omission = sin of commission? Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Knowles and Prewitt (1967)

24. Once a colonial system is established historically, those in the superior position seek to monopolise basic resources. In this process, privilege becomes institutionalised, that is, it becomes imbedded in the norms (regulations and informal rules) in a variety of social, economic and political organisations (Knowles & Prewitt, 1978, p.213) Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Complex discrimination = mission = (?) commission

25. interest theory of discrimination internal colonialism institutional racism 4 category framework of complex discrimination Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Feagin and Feagin (1978)

26. (1)isolating discrimination (2)small group discrimination (3) direct institutionalised discrimination (4)indirect institutionalised discrimination Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast

27. intentionally benevolent unintentionally benevolent Unintentional institutional discrimination= unintended adverse impact on minorities of anonymous processes such as inflation, economic cycles, fiscal systems, the social infrastructure etc Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Robert (1988)

28. Like Pincus (1999) restrict structural to social systems involving multiple institutions e.g. the educational system and hig level policies Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Restrict institutional to bounded organisations i.e. an institution e.g. a hospital, a school, a system

29. Methodology Identify issues of contention & consensus synthesise definitions of institutional & systemic discrimination in the literature Identify implicit criteria Produce a more orderly schema Assess the need for and potential of recognition of these forms of discrimination in statute

30. collective vs individual within 1 institution or across multiple i.e. a system Cultural vs structural Access vs retention/use Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Axes which define complex discrimination

31. Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast The layering of discriminatory processes & experiences 1 2 3 4 1= direct discrimination and hate crime 2= indirect discrimination 3 = institutional discrimination 4= systemic discrimination

32. Definitions of discrimination : Direct discrimination : discriminatory behaviour which intentionally has adverse impacts for minority group individuals + Hate crimes : intentionally discriminatory interpersonal behaviours which are expressed through verbally, emotionally or physically abusive behaviours Indirect discrimination: the creation of adverse impacts and disadvanatages within organisation and institutions through the actions of individuals or groups of individuals applying ostensibly unbiased rules and universal standards to unequal situations (that is ignoring a social group difference of preference or experience when it is relevant to the meaningful achievement of equality of opportunity Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast

33. Institutional discrimination : the creation of adverse impacts and disadvantages within organisations and institutions through the application of ostensibly unbiased rules onto pre-existing differences of condition, preference and culture Systemic discrimination: whole society discrimination, disadvantage and exclusion: the creation of adverse impacts and disadvantages through any or all forms of discrimination in a number of social fields and multiple institutions. These impacts are likely to reinforce each other and be cumulative in effect on the individual and their group cumulative effects may adhere to the subjective or objective aspects of equality Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast

34. Systemic discrimination permeates the historical record of minority-majority relations and statuses; religious beliefs, social practices and public policy (Humpage, 2001) Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast

35. omission vs comission Need to Recognise Benevolence/Affirmative Action? Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Lack of consensus on:

36. Institutional discrimination = systemic discrimination Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast

37. institutional racism = bundle of individual attitudes and uncritical self- evaluation at organisational level. Hesse (2004) McPherson is a denial of institutional racism Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast McPherson Report

38. Systemic racism and discrimination rooted in: Ethnic, equality and migration policies Management of Us and Them of internal and external difference, political, physical and social boundaries Minimisation and invisibility of difference (voluntary and involuntary) Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast The Unholy Trinity

39. 4 preconditions for equality (1) rights (2) recognition; (3) representation Equal citizenship = absence of complex forms of discrimination in Pavis 4 pre-condition spheres Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Pavi

40. Depiction of Northern Ireland as 2 warring native tribes – invisibility of other ethnicities Pre 1972 Northern Ireland society = systemic discrimination Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Northern Ireland & systemic discrimination

41. common to all are: social moral paternalism ie relocation of dysfunctionality the problem from Us to Them – i.e. away from structures and persons of power Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast Genericism and specificity in (in) equality

42. Conclusions Recognition of systemic and institutional discrimination is propose a valuable step en route to the realization of fair or meaningful equality of opportunity (Baker et al, 2004) Should be recognised as the objects of attention within a duty to take reasonable steps to progressively reduce persistent under-representation of minorites in occupations, organisations and/or customer base Equality and Social Inclusion in Ireland Project Project Co-ordinator: E McLaughlin, Queens University Belfast

43. Conclusions cont. Required to reduce unfair inequalities of condition and their continued inscriptions on the bodies & spirits of the oppressed.