1.1 Goal and Approach of the Book
The second half of the 20th century saw the worldwide adoption of legally binding equality and non-discrimination standards (equality standards for short). At the global and regional level a wide variety of human rights treaties testify to this. They all contain equality standards, and some are devoted entirely to eliminating discrimination.1 At the national level this development is reflected in the adoption of equality standards in many constitutions, bills of rights, and specific anti-discrimination laws.2
Article 26 of the International Covenant on Civil and Political Rights (ICCPR) is a prominent example of this development:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Its twin convention, the International Covenant on Economic, Social and Cultural Rights (ICESCR), also contains a general and similarly formulated right to equal treatment and non-discrimination.3 As a far majority of member states of the United Nations has ratified both covenants, and almost all states have at least ratified one of the two, this shows equality and non-discrimination have become universally accepted as general and overarching legal standards.4 Arguably, equality is foundational for the very idea of human rights as rights inherent to all human beings. As the Inter-American Court of Human Rights (IACtHR) formulated it: ‘The notion of equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual’.5
At the same time, what these standards entail or should entail in more concrete detail is often subject to much controversy and both legal and public debate, and may differ widely between jurisdictions. Many topical equality issues attest to this. Regarding racial discrimination, for example, there seems to be universal recognition that this form of discrimination is unacceptable, but what does this mean if applied in concrete situations? Should states always follow a race-blind approach, or may they also adopt affirmative action measures to undo past or systemic discrimination? Does a right to equal treatment regardless of sex or gender mean that women should always be treated the same as men, or should it allow for making exceptions if this meets with strong opposition by cultural or religious norms and practices? And what about the gendered division of labour regarding paid work and care-taking activities which is prevalent in most countries in the world? Does equality law have a role to play in achieving more shared responsibility between parents? Turning to issues of equal treatment regardless of sexual orientation or gender identity: does equality as a legal standard mean that same-sex couples must have access to marriage on an equal basis as different-sex couples? Does the right to non-discrimination include discrimination on the basis of gender identity? And how do discrimination on the basis of sexual orientation or gender identity relate to discrimination on the basis of sex? Are they included under the (often more extensive) protection accorded to the latter? Ongoing issues regarding discrimination on the basis of religion also figure worldwide, be it about the question whether banning certain religious expressions such as the wearing of a headscarf or burqa or, in the opposite way, requiring women to wear it, are acceptable or not. Regarding persons with disabilities, a general commitment to approaching the prohibition of discrimination as including a right to reasonable accommodation seems to be emerging across jurisdictions, but how far this right reaches in concrete situations is up for a lot of debate.
More generally, current discussions regarding the meaning of equality and non-discrimination as legal standards often raise the question to what extent they can or cannot address the structural and systemic disadvantage faced by vulnerable and marginalized groups suffering from all sorts of discrimination in society. Can it reach the underlying root causes of such forms of disadvantage, which are often ingrained in the very fabrics of society?
Though equality and non-discrimination standards often play a prominent role in these types of discussion, their actual role in addressing them in any legal system is often unclear. If anything, they may differ widely between jurisdictions. No commonly accepted agreement seems to exist about applying these standards in concrete situations. Also within a jurisdiction, application of these standards may remain unclear and raise a lot of questions. As such, it is not surprising that the right to equality has been characterized as elusive and hard to grapple with.6
In this study I intend to clarify why this is so and improve understanding of how equality – and its more specific manifestation as a prohibition of discrimination – operate as legal concepts and standards. Interestingly, equality as a legal concept has shown itself to be very dynamic. Particularly over the past fifty years or so, in many jurisdictions conceptualizations of equality have been evolving from rather limited notions centring on formal equality into broader and multi-layered understandings grounded in more substantive readings of equality. These include the notions of indirect discrimination, (reasonable) accommodation and positive discrimination or positive action.7 This development has been driven largely by judicial interpretation and application of legal equality standards in a variety of jurisdictions. As a result, conceptualizations of equality have become all the more complex.
I will explore these legal concepts and explain how different conceptualizations matter and may result in different outcomes in legislation, case law and policy. This also entails exploring the limitations of equality and non-discrimination as legal standards to address social realities of inequality and discrimination.
By taking an analytical and explanatory approach as my starting point, this work differs in a principled way from normative theories and studies on discrimination law, which propagate a particular theory or approach as the proper or best way forward. The books by Fredman, Khaitan, McGolgan and Solanke on discrimination law are prominent examples of the latter.8 Rather than seeking to develop a normative theory of equality and non-discrimination as legal standards, this study does not intend to defend a particular conceptualization of equality and non-discrimination. Instead, it will focus on discussing the consequences of particular approaches and the dilemma’s and difficulties involved in choosing between them. I hope this analysis will contribute to making the legal notion of equality less elusive.
With its focus on analyzing legal understandings of equality and non- discrimination, this study is predominantly directed to readers with a legal background, such as legal scholars and practitioners, judges and other professionals involved with equality and non-discrimination law, including activists, and law students. I hope it can also be relevant for persons with other disciplinary backgrounds involved in equality and non-discrimination law.
In the following chapters I explore the main concepts which have been developed in equality and non-discrimination law and theory – such as formal and substantive equality, direct and indirect discrimination, (reasonable) accommodation, positive discrimination or positive action and intersectional discrimination – and how different conceptualizations may impact the outcome of applying them in legal practice.
1.2 Methods
In analyzing the main concepts developed in equality and non-discrimination law and theory mentioned above, I understand these notions not as fixed or rigid categories which can be divided in separate and watertight compartments, but as specific types or models which share sufficient basic and general features to set them apart. In this way I intend to provide a meaningful, overarching analytical framework for better understanding how they are conceptualized and work across jurisdictions, while at the same time acknowledging that within these types or models many differences and varieties may exist between jurisdictions, including hybrid types and models. Being preoccupied with painting a broad picture, my analysis cannot do justice to the complex variety in which equality standards operate in more detail in different jurisdictions. It will necessarily gloss over many of the nuances, subtleties and/or inconsistencies within jurisdictions, but I hope it will provide a meaningful general framework for studying these in more detail.
A caveat is in order here. The general and overarching understanding I present does not lay claim to absolute truth or to being the only or best possible understanding. It is my best understanding as I have developed it over the past decades and I hope it will be meaningful for the reader. It is also important to point out that ‘my best understanding’ as presented is not the same as what I would consider normatively to be the best way to approach equality as a legal standard. My normative position may be apparent from other publications,9 but as mentioned already above, my endeavour in this book is of an explanatory nature to help clarify the various conceptualizations of equality and non-discrimination in the legal realities of the jurisdictions in which they operate. This may help explain how these concepts work when applied in legal practice, why they often turn out to be quite fuzzy, the types of difficulties and bottlenecks they pose in their application, and how different conceptualizations may lead to different outcomes.
My conceptual analysis is based on a combination of legal theory perspectives and doctrinal legal research methods. Firstly, it draws on insights from legal and political/philosophical theory on equality and discrimination. The available scholarship on this topic is vast and provides a wealth of conceptual analyses and insights to which this study is profoundly indebted.10 Secondly, legal doctrine and case law regarding equality and discrimination as developed in a wide variety of jurisdictions provide crucial sources.
As judicial bodies often play a central and even driving role in developing legal notions of equality and discrimination, the latter source takes pride of place. At the national level, these jurisdictions include several countries which are well-known for their contributions to the development of the various conceptualizations of equality and discrimination in their judicial review of the applicable equality standards, such as the US, Canada and South-Africa. I also refer to equality cases in my own country, the Netherlands. Even if these are language wise not easily accessible to foreign readers and are mostly of a soft-law character, a conceptually rich jurisprudence has been developed under the Dutch General Equal Treatment Act.11 At the regional level, the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU) provide a wealth of relevant case law, which has been very influential in shaping approaches to equality standards in European countries, but also far beyond. In addition, the Inter-American Court of Human Rights (IACtHR) has also started to develop a significant line of jurisprudence on equality issues. Last but not least, at the global level, the conceptualization of equality and non-discrimination developed by the supervisory bodies to the international human rights conventions is a relevant source, though contrary to the regional human rights courts, the interpretation of equality standards by these treaty bodies constitute soft-law only. Nevertheless, as will become clear in this study, they may also exert considerable influence on conceptual developments.
Given the conceptual focus and overarching purpose of this study, it does not seek to provide a comprehensive, comparative law analysis of the equality and non-discrimination standards in the jurisdictions mentioned. It uses a selection of cases and other materials from across this variety of jurisdictions to illustrate how equality and non-discrimination standards can be understood in more limited or more far reaching terms; what types of difficulties and dilemmas are attached to the application of the various conceptualizations of equality and discrimination; and how different conceptualizations may result in very different outcomes. If I identify certain developments or approaches to equality in the subsequent chapters as ‘general’, ‘frequent’ or ‘usual’ and the like, it is within the context of this selection of jurisdictions.
1.2.1 Limitations of This Study
I realize that a focus on jurisdictions which have been playing a prominent role in developing and shaping equality standards entails a prevalence of Western perspectives and developments. It risks to leave out legal experiences and practices in many other countries and parts of the world not included in the selection. As such, this study cannot and does not claim to be grounded in some sort of ‘universal’ way of looking at equality and non-discrimination standards. At the same time, developments discussed in the following chapters show how understandings of equality as a legal concept in Global South jurisdictions have gained increasing prominence. They have become more and more influential in shaping notions of equality and discrimination throughout the world, including in Western jurisdictions. A particularly important role is played by the Constitutional Court of South Africa. In this sense, legal conceptualizations of equality standards are becoming much more globally informed than before. The internet revolution and rise of digital technologies have greatly helped the possibilities for such types of mutual influencing.
My focus on analyzing conceptual understandings of equality and non- discrimination standards creates another type of limitation. So far, interpretations of the legal concepts discussed in the subsequent chapters have to a large extent been based on equality and non-discrimination standards regarding groups facing discrimination on the basis of sex, race and religion. This may be explained by the fact that these grounds usually have much longer roots in equality and non-discrimination standards than categories such as disability, age, sexual orientation or gender identity. As a consequence, conceptual understandings of equality standards developed largely from case law regarding the former grounds. This is reflected in the prominent place they occupy in this study. Discrimination on the basis of disability provides an exception as far as the development of the concept of reasonable accommodation is concerned. As will be addressed in Chapter 6, the coming into being of the CRPD in 2006 has exerted (and still is exerting) a profound influence on shaping the meaning of this particular legal concept.
A third limitation derives from the dynamic character of equality as a legal concept referred to above. Its development into a much more multi-layered notion is not definite or finished, but ongoing. As the following chapters intend to show, the concepts of direct and indirect discrimination as well as the notions of positive discrimination or positive action seem to have become quite crystallized across jurisdictions, but lack of (reasonable) accommodation as a distinct form of discrimination and intersectional discrimination are still very much underdeveloped as legal concepts. As a consequence, the chapters discussing the latter are of a more tentative nature.
1.3 Terminology
As many jurisdictions may use the same words for different things or different words for the same things, a few remarks are in order about the terminology I use in this study. As a general starting point, I do not use any fixed definitions of the various notions of equality and discrimination figuring in this study as I try to capture their overarching features and look for commonalities in their understanding across jurisdictions. As a consequence, I use terminology rather loosely in a general sense and prefer formulations which span jurisdictions rather than wording particular to a specific jurisdictions. Nevertheless, as some of the terminology I use may not be self-evident or raise questions, some further explanation regarding the following terms may be useful to the reader. Of course, if I discuss particular equality standards or specific case law in a particular jurisdiction, I will use the corresponding terminology.
1.3.1 Equality and Non-discrimination Standards
I use the terms ‘equality standards’ or ‘equality and non-discrimination standards’ interchangeably and as generic terms for all sorts of legal standards covering a right to equal treatment or non-discrimination. So they may cover a wide range of more specific formulations in terms of, for example, equal protection of the law, equality before the law, granting rights ‘without distinction’ or ‘without ‘discrimination’ of any kind or on particular grounds, et cetera.
1.3.2 Formal and Substantive Equality
Formal and substantive equality are commonly distinguished in academic literature and jurisprudence. In general terms, a formal equality approach starts from the presumption that all persons should be treated the same and is preoccupied with the question to what extent and in which situations differential treatment can nevertheless be justified. Substantive equality, on the other hand, is not concerned with equal or unequal treatment as such, but with the unequal outcome of a treatment, so regardless whether it results from the treatment being different or the same. In this study I use this general understanding of formal and substantive equality as a starting point and link it to the classic, Aristotelian notion of equality often referred to in legal theory, which holds that ‘like case should be treated alike, and unalike cases unalike in accordance with their unalikeness’. In several jurisdictions this two-limbed notion has been taken on board, the second one having been tied expressly to a substantive equality approach. (See for further elaboration Chapter 3). As such it is part of legal doctrine.
To avoid confusion, this rather ‘thin’ and legally informed understanding of formal and substantive equality is to be distinguished from the way in which substantive equality is also often perceived as a ‘thick’, that is much more expressly normative conception of what equality and non-discrimination standards should try to achieve. Fredman’s elaboration of substantive equality as a four-dimensional concept directed at redressing disadvantage (the redistribution dimension), addressing stigma, stereotyping and violence (the recognition dimension), facilitating social inclusion and political voice (the participation dimension) and accommodating difference and structural change (the transformative dimension), is a prime example.12
1.3.3 Discrimination; Sensitive, Protected and Suspect Grounds
Discrimination language is not always used in the same way across jurisdictions, but it is usually reserved for differences in treatment on the basis of certain grounds that are considered to require more stringent justification to be allowed. The latter is how I use the terminology, unless indicated otherwise. Grounds deserving such higher protection are often referred to as ‘protected’ grounds or ‘suspect’ grounds. In my own work I also used the terminology of ‘sensitive’ grounds. In this study I use these three terms interchangeably. The ‘classic’ list of grounds legally identified as protected grounds usually include race, sex and religion (already included in the Charter of the United Nations in 1945), as well as colour, political or other opinion, national or social origin, property and birth (included in addition to these grounds in the Universal Declaration of Human Rights (UDHR) and in the ICCPR and ICESCR). In more recent times, in many jurisdictions the list of protected grounds has been extended significantly, for example by including sexual orientation, disability, age and gender identity. (For further elaboration see Chapter 4.) Particularly the first three grounds – race, sex and religion – have played a prominent role in shaping the development of non-discrimination standards and as such will figure prominently in the subsequent chapters. Though using the categories of ‘race’ and ‘sex’ can be considered problematic,13 I follow this terminology, as it is figuring in the far majority of legal texts and documents.
1.3.4 Indirect Discrimination and Disparate Impact Discrimination
The concept of indirect discrimination has developed over time in several jurisdictions. As will be discussed in Chapter 5, it has attained more or less common features across jurisdictions. In some jurisdictions the terminology of ‘disparate impact’ or adverse impact’ discrimination is used. I use these terms as interchangeable.
1.3.5 (Reasonable) Accommodation
Using the terminology of ‘reasonable accommodation’ is more complicated. Denial of reasonable accommodation has taken on a quite specific meaning in the CRPD, in which it figures as a distinct, sui generis form of discrimination applicable in the context of disability. Thus, for example, discrimination on the basis of disability is at stake if office space is not adjusted to the specific, individual needs of an employee in a wheel chair, unless this would impose a disproportionate burden on the employer. As will be elaborated in Chapter 6, this specific conceptualization of reasonable accommodation as a right to individual accommodation does not fully align with similar notions of an obligation to accommodate the particular needs of persons or groups as part of equality and non-discrimination standards more generally. Thus, for example, several jurisdictions require accommodation of religious practices, for instance by granting an exemption from having to work on Saturday for persons adhering to the Jewish religion or adjusting dress codes to allow for the wearing of religious symbols. Other jurisdictions have also required accommodation of the needs of other groups protected by non-discrimination standards, such as the need of legal regulation of the relationship of same-sex partners as an alternative to marriage. As the terminology used for such obligations in different jurisdictions is quite varied and not consistent, I use (reasonable) accommodation as a generic term to refer to this type of obligation. By placing ‘reasonable’ between brackets I intend to avoid conflating the general and broader notion of a duty of accommodation existing in several jurisdictions with the particular way in which ‘reasonable accommodation’ is defined under the CRPD.
1.3.6 Positive Discrimination and Positive Action
Positive discrimination, reverse discrimination, benign discrimination, preferential treatment, affirmative action, ameliorative measures, remedial measures, temporary special measures or positive action: depending on the jurisdiction concerned, all these terms may refer to a highly contested topic. Do equality standards allow for measures or polices which make deliberate and express use of protected categories such as race or sex to benefit and improve the position of structurally disadvantaged groups? Formulations in terms of ‘discrimination’– regardless the addition of ‘positive’ or ‘benign’ – usually denote a reluctance to accept this type of measures or policies as an acceptable way to improve the position of disadvantaged groups. Formulations avoiding the term discrimination and instead using terms like ‘positive action’ or ‘ameliorative measures’, tend to represent more positive attitudes to such measures. In view of the wide variety of terminology used in legal practice and the sensitivities attached to it, it is impossible to use legally neutral terminology. For this reason I use all the above terms interchangeably and often use ‘positive discrimination’ and ‘positive action’ in tandem, as in the title of Chapter 7. When discussing particular case law on the topic, I will use the terminology common to the jurisdiction concerned.
1.3.7 Structural or Systemic Discrimination
I understand structural or systemic discrimination in a general sense as discrimination that encompasses pervasive patterns of prejudice or disadvantageous treatment of (members of) a particular group across various areas of law and society. It is not about incidental discrimination or prejudice, but about ‘multiple forms of compounded disadvantage’.14
1.3.8 Intersectional Discrimination
Intersectional discrimination, multiple discrimination and compound or aggravating discrimination are sometimes used as interchangeably, sometimes to denote distinct forms of discrimination. I generally use the terminology ‘intersectional discrimination’ in the way it was deployed by Crenshaw in relation to the particular predicament faced by black women in the US compared to either white women or black men; that is as discrimination on the basis of a combination of two or more protected grounds resulting in a distinct type of discrimination.15
1.4 Outline of the Subsequent Chapters
An overview of the main scope and content of the subsequent chapters is provided to clarify to the readers what to expect and to enable easy navigation through the book and quickly find any particular topic.
Chapter 2 sets the stage by discussing the historical background and development of equality as a legal concept, including its links with equality as a political and philosophical notion and ideal, before turning to the general features of equality as a legal standard and some of the questions it raises.
The historical background explores the role of the state as the guarantor of equal and inalienable rights in liberal theory and the broadening personal scope of equality as a legal standard (‘equality of whom’) by gradually including not just a rather small group of mainly white, male citizens, but all human beings regardless of sex, race and other identity or status markers. This development is reflected in provisions regarding equal treatment and non-discrimination becoming part and parcel of international human rights conventions and national constitutions. In addition, the material scope of equality (‘equality of what’) is discussed. This element is often central to political and philosophical discussions on equality and is perhaps the most contested element. In classical liberal theory equality is limited to liberty and freedom rights, but over the course of time equality claims often have come to be extended to include (elements of) social and economic equality.
Besides on its personal and material scope, the reach of equality as a legal standard depends to a large extent on its conceptual scope. This scope may vary greatly, particularly depending on equality being interpreted in a formal or a substantive way. Similarly, conceptualizing discrimination in a broad way by including modalities of discrimination such as indirect discrimination, a lack of (reasonable) accommodation, positive discrimination/positive action, and intersectional discrimination, makes a considerable difference. Such varieties in the conceptual scope of equality and non-discrimination standards are the focus of the book and are explored in the subsequent chapters.
Chapter 3 is devoted to the crucial distinction between formal and substantive equality. In a legal context, these notions have developed their own, distinct meaning. Taking the Aristotelian notion of equality as a starting point the chapter reflects on the one hand on the demand that ‘likes should be treated alike’, which represents a requirement of formal equal treatment. On the other hand, it delves into the question what the requirement that ‘unalikes should be treated unalike in accordance with their unalikeness’ adds to this. By its reference to the need to take differences into account, the second part of the Aristotelian notion of equality links it to the relevance of the outcome of the treatment, rather than the treatment itself being equal. A concern with the unequal impact of a treatment is the hallmark of a substantive equality approach. As human beings differ from each other in myriad ways, both approaches have to come to terms with the question which differences are relevant in which contexts, and which are not. If anything, it puts on the table what may be regarded as a core issue of conceptualizing legal equality and equality theory more generally: how to respond to human difference and inequality? The chapter discusses how formal and substantive equality approaches differ in this respect. It also clarifies how both bring along their own difficulties and dilemmas when they are applied in concrete cases. As both formal and substantive equality focus on unjustified treatment, be it unjustified unequal treatment or unjustified equal treatment, equality analysis inevitably involves all sorts of normative assessments and appreciation. Unsurprisingly, then, they can be up for a lot of discussion depending on the perspectives taken.
Chapter 4 provides an analysis of the general features of non-discrimination as a legal standard. It starts with an exploration of the distinguishing characteristics of discrimination, including its relationship with equality as a legal concept. Generally speaking, non-discrimination can be seen as a particular articulation of equality. Discrimination is first and foremost concerned with differential treatment on the basis of ‘sensitive’ or ‘protected’ grounds. Treating people differently on the basis of such grounds is usually perceived as ‘suspect’. In addition to the most ‘classic’ grounds such as race, sex and religion, these have come to cover an increasing number of other categories, such as disability, sexual orientation and gender identity. The chapter discusses how grounds have been identified as sensitive or protected grounds and explores the complexities of legally defining and delimitating grounds of discrimination. It also goes into the proliferation of the number of grounds identified as ‘protected grounds’ in many jurisdictions, before turning to what is core to non-discrimination law: the way in which differential treatment in rules or policies on the basis of protected grounds leads to a demand of stronger justification to be acceptable. More stringent judicial review, then, is a fundamental characteristic of the application of non-discrimination standards. The types of stricter review developed show strong similarities across jurisdictions. To conclude the chapter, some of the difficulties and dilemmas of differentiating discrimination review according to the particular ground involved are discussed.
Chapter 5 delves into the concept of indirect discrimination which developed over the years and can be said to have become – in one way or another – part and parcel of the conceptualization of non-discrimination by national and regional courts and global human rights bodies. A prohibition of indirect discrimination in addition to direct discrimination significantly expands the reach of non-discrimination standards by bringing seemingly neutral classifications having a disproportionate negative impact on groups protected by these standards within their purview. With its focus on the outcome of a treatment rather than the treatment itself, it belongs to the realm of substantive equality approaches. The general features and core elements of the concept of indirect discrimination are explored, including the ways in which disproportionate impact may be construed and standards of judicial review have been developed.
By problematizing the unequal, disadvantageous effects of an equal treatment as an equality issue, the notion of indirect discrimination may have a considerable potential for addressing more structural and systemic levels of discrimination. Yet, whether this potential can materialize depends to a large extent on the strictness or leniency with which it is applied in legal practice. Again, the consequences of different approaches for the outcome of concrete cases are illustrated with examples from across jurisdictions.
Chapter 6 explores a modality of discrimination which is closely related to indirect discrimination and sometimes conceived as a particular part of this notion, but also as a sui generis modality of discrimination: lack of (reasonable) accommodation. Similar to the concept of indirect discrimination, application of the notion of (reasonable) accommodation is triggered by the unequal impact of a treatment on a group protected by non-discrimination standards. As such, the concept of (reasonable) accommodation is also tied to a substantive equality approach.
The concept of (reasonable) accommodation is much less crystallized than indirect discrimination, which has established itself as a broadly accepted, distinct concept and manifestation of discrimination with very similar general features across jurisdictions. A duty of reasonable accommodation as part of discrimination analysis has gained considerable traction with the adoption of the CPRD in 2006, in which it occupies a prominent place. The CRPD has identified it as a distinct form of discrimination: not accommodating the particular, individual needs of disabled persons may amount to discrimination. The CRPD has become very influential globally. The Convention is widely ratified and its approach to (reasonable) accommodation has been followed in many national jurisdictions. At the same time, the particular context and focus of the notion of reasonable accommodation in the CRPD as a form of accommodation which is limited to individual adjustments and to persons with disabilities, seems to contribute to confusion about (reasonable) accommodation as a much broader concept in equality and non-discrimination law.
The idea that a lack of accommodation of certain individuals or groups may constitute a form of discrimination was present in legal practice before the terminology of (reasonable) accommodation was used and long before the CRPD-model of reasonable accommodation gained prominence. Anyway, manifestations of notions of (reasonable) accommodation in legal practice are quite fragmented and not fully aligned. As mentioned before, (reasonable) accommodation is in many respects an underdeveloped concept in the legal practice of jurisdictions.
Chapter 7 discusses positive discrimination or positive action, which is a highly contested issue in most jurisdictions. With its focus on correcting factual inequalities, affirmative action fits very well in a substantive equality approach. After providing an overview of the general features of positive discrimination or positive action, diverging views on its legitimacy and instrumentality are discussed. Being aware of these views is helpful in understanding the different choices that can be and are made regarding legal approaches to remedial measures in different jurisdictions, which are explored in more detail.
As it turns out, a central feature of the different legal approaches to affirmative action regards the question whether equality and non-discrimination are to be perceived in a symmetrical or asymmetrical way. Is a distinction based on sex or race to improve the position of women or disadvantaged racial groups to be regarded with equal suspicion as using such a distinction to the detriment of these categories? In jurisdictions adhering to the former, judicial review translates into more lenient scrutiny of remedial measures. At the same time, also within the latter type of jurisdiction approaches to remedial policies meet with their own distinct difficulties. Particularly the demarcation of the groups to benefit from affirmative action may pose serious dilemmas.
Chapter 8 addresses intersectional discrimination. This type of discrimination occurs when discrimination on two or more grounds coincide to create a distinct type of discrimination, which is qualitatively different from discrimination on the basis of the grounds taken separately. Intersectional discrimination has received increasing attention as it creates unique forms of discrimination. Discrimination suffered by black women at the intersection of race and gender is a classic example. Though it has been much discussed in academic literature, as a legal concept it has been hardly developed yet. Conceptually, intersectional discrimination poses tough questions for equality and non-discrimination law that do not seem to have been clearly answered yet in any jurisdiction. This chapter will try to bring a bit more clarity by looking at various ways in which intersectional discrimination has been dealt with so far in judicial analysis of equality standards.
Chapter 9 brings together the main lines and understandings developed in the preceding chapters by reflecting on some general trends regarding the conceptualization of equality as a legal standard that stand out across jurisdictions.
In the context of this study, the main treaties at the UN level consist of the International Covenant on Civil and Political Rights (ICCPR, 1966), the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 1965), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979) and the Convention on the Rights of Persons with Disabilities (CRPD, 2006). The main regional treaties are the European Convention on Human Rights (ECHR, 1950), The American Convention on Human Rights (ACHR, 1969) and the African Charter on Human and Peoples’ Rights (ACHPR, 1981).
For equality standards in national constitutions see the website of the Comparative Constitutions Project, https://comparativeconstitutionsproject.org/.
Article 2(2) ICESCR: ‘The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ For an overview of the main equality provisions in international and regional human rights conventions see L. Carlson, Comparative discrimination law: historical and theoretical frameworks, Brill Research Perspectives in Comparative Discrimination Law, Brill, 2017 and M. Mwakagali, International human rights law and discrimination protections. A comparison of regional and national responses, Brill Research Perspectives in Comparative Discrimination Law, Brill, 2019.
For the ratification status of UN human rights treaties see https://indicators.ohchr.org/.
IACtHR, 19 January 1984, Advisory opinion OC-4/84 on proposed amendments to the naturalization provision of the constitution of Costa Rica, par. 55.
Cf. Albertyn and Goldblatt, who call it ‘this most difficult of rights’, C. Albertyn and B. Goldblatt, Chapter 35. Equality, in: S. Woolman and M. Bishop (eds), Constitutional Law of South Africa, 2007, p. 2; Fredman refers to equality as ‘elusive’, see the preface of S. Fredman, Discrimination law, Oxford, Oxford University Press, 2022 (3rd edition).
For the way in which I use these and other concepts see below, Section 1.3.
S. Fredman, Discrimination law, Oxford, Oxford University Press, 2022 (3rd edition); T. Khaitan, A theory of discrimination law, Oxford, Oxford University Press, 2015; A. McColgan, Discrimination, equality and the law, Oxford, Hart Publ., 2014; I. Solanke, Discrimination as stigma: a theory of anti-discrimination law, Bloomsbury, 2017.
Starting with my dissertation in 1992, my normative position favours a more substantive reading of equality as a legal standard and has not changed significantly since then. See T. Loenen, Verschil in Gelijkheid. De conceptualisering van het juridische gelijkheidsbeginsel met betrekking tot vrouwen en mannen in Nederland en de Verenigde Staten, (Difference in equality. The conceptualisation of the legal principle of equality regarding women and men in the Netherlands and the United States), Doctoral thesis, Zwolle, Tjeenk Willink, 1992; T. Loenen, Rethinking sex equality as a human right, Netherlands Quarterly of Human Rights, 1994, p 253–270.
A starting point for readers not acquainted with the topic could be the International Journal on Discrimination and the Law, the publications in the Brill Research Perspectives in Comparative Discrimination Law and the overview of publications by members of the worldwide, multidisciplinary network of activists, advocates, and academics working in the field of anti-discrimination law, coordinated by the Berkeley Center on Comparative Equality & Anti-Discrimination Law, https://www.law.berkeley.edu/research/berkeley-center-on-comparative-equality-anti-discrimination-law/our-library/.
The Dutch Commissie Gelijke Behandeling (Equal Treatment Commission) and its successor, the College voor de Rechten van de Mens (Netherlands Institute for Human Rights), have played a particularly important role in this respect by dealing with a very large number of equal treatment complaints under the Dutch equal treatment legislation (up to 100–200 cases each year since 1994). Though their decisions have the legal status of opinions and are not legally binding, they have been quite influential in shaping equality and non-discrimination standards in the Netherlands in more concrete detail. They are available in Dutch only. See more extensively S. Burri, Combating pregnancy discrimination in the Netherlands. The role of equality bodies, in: B. Havelková and M. Möschel (eds), Anti-discrimination law in civil law jurisdictions, Oxford University Press, Oxford 2019, Chapter 7, p. 158–1175 and in the same book T. Loenen, The impact of anti-discrimination law in the Netherlands. A case study of discrimination on grounds of religion in employment, Chapter 11, p. 233–243.
S. Fredman, Discrimination law, Oxford, Oxford University Press, 2022 (3rd edition).
Using the category of ‘race’ sits uneasily with the idea that there is only a single human race. As approached in the ICERD, racial discrimination is to be understood in a broad way as discrimination on the basis of race, colour, descent or national or ethnic origin (Article 1(1)). ‘Sex’ as a category is now often disregarded and replaced by the terminology of ‘gender’. This acknowledges the socially constructed nature of the categories of ‘man’ and ‘woman’ as well as these being broader and more fluid categories than the traditional binary notion.
Cf. D.B. Oppenheimer, What is ‘systemic racism?’ How is it different from racist acts caused by bigotry, prejudice or bias? Paper, 6 July, 2020, p. 1; available at SSRN https://ssrn.com/abstract=3644684 or http://dx.doi.org/10.2139/ssrn.3644684.
K. Crenshaw, Demarginalising the intersection of race and sex: a Black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics, University of Chicago Legal Forum, 1989, p. 139–167.