Intersectional analysis of disadvantage

When referring to the notion that experiences of discrimination and disadvantage cannot necessarily be directed to a single personal characteristic but, rather, the interaction of multiple characteristics, the term ‘Intersectionality’ is often used. Despite this, our anti-discrimination law permits claims of discrimination or harassment to be brought on singular grounds only.

Opportunities in the Equality Act 2010 for an intersectional analysis of disadvantage

‘Intersectionality’ is now a common term deployed in law, policy and popular discourse to refer to the idea that experiences of discrimination and disadvantage cannot necessarily be attributed to, or understood by reference to, a single personal characteristic but, rather, the interaction of multiple characteristics. A decision not to hire a Muslim woman because she wears the hijab, for example, is often conceived in the case law as a form of religious discrimination, yet the disadvantage suffered might more accurately be explained as occurring at the intersection of religion and gender; the dress code, after all, has an adverse impact on Muslim women as a group, rather than Muslims in general.

Despite significant support for law and policy to address intersectional disadvantage, our anti-discrimination law, espoused primarily in the Equality Act 2010, permits claims of discrimination or harassment to be brought on singular grounds only. The Muslim woman in our example could bring a claim of religious discrimination and, potentially, a claim of sex discrimination, but she could not formally construct a claim that she was discriminated against because of the interaction of religion and sex. While there have been commendable efforts by the tribunals to address discrimination experienced on two grounds in combination (see O’Reilly v BBC & Anor (ET) 2200423/2010; Ministry of Defence v Debique (EAT) [2010] IRLR 471), the Court of Appeal has been less accommodating (see Bahl v The Law Society and others [2004] IRLR 799).

The Equality Act does contain a prospective provision (s14) which would – if brought into force – permit a complaint of direct discrimination to be brought on two grounds in combination. However, with no seeming political will to bring this provision into force, any prospect for change lies with the judicial development of common law through the value of the courts’ precedent in decision-making. Though challenging given the nature of our anti-discrimination law framework as described, there are opportunities, I would argue, in the Equality Act (understood in its international human rights context) for litigators to present claims in a way that invites – even, requires – the courts to adopt an intersectional analysis of disadvantage that better reflects lived experience. It is to these opportunities that I now turn.

The first ‘tool’ in the litigator’s armoury is the proportionality analysis, which is most commonly deployed in complaints of indirect discrimination and in defences based on the genuine occupational requirement exceptions, but which may also be deployed in complaints brought pursuant to (or which invoke considerations related to) Article 14 of the European Convention on Human Rights (ECHR). The proportionality analysis asks, broadly, whether the discriminatory means deployed are proportionate to the legitimate aims pursued. Litigators ought to present to the courts evidence relating to the full impact of the discriminatory measures so this can be taken into account in assessing their proportionality. Assessing the proportionality of a uniform policy to promote neutrality in an organisation and which prohibits, for example, the wearing of the hijab, should take into account the intersectional nature of the policy’s impact on the Muslim women affected in the particular workplace, but also the wider intersectional inequalities to which the policy contributes, and which relate to access to work for Muslim women in general.

The second ‘tool’ for litigators is the – oft forgotten or downplayed – Article 14 of the ECHR, which provides that Convention rights must be enjoyed without discrimination on status grounds. When a discrimination complaint invokes a Convention right – whether directly as a complaint under s6 of the Human Rights Act 1998, or indirectly through the interpretative duties in s2 and s3 of the Act – consideration should be given to whether Article 14 can be deployed to reflect intersections in the disadvantage experienced. Conduct or practices, for example, that affect Muslim women adversely can be challenged as a breach of the Article 9 right to religious freedom and as a breach of the Article 14 right to enjoy this freedom without discrimination on grounds of sex.

The third ‘tool’ can be used in harassment complaints. Conduct classed as related to a single characteristic will be unlawful harassment if it has the purpose or effect set out in s26 of the Equality Act. When assessing the ‘effect’ of the conduct, s26(4) of the Act regards as relevant the claimant’s perception, whether it was reasonable for the conduct to have the effect complained of and the other circumstances of the case. Here evidence on the intersectional nature of the disadvantage experienced can be led. A Pakistani Muslim woman who is repeatedly asked questions by her employer about her plans to start a family because of stereotypical assumptions about Muslim women of Pakistani ethnicity, may try to plead a complaint of harassment related to religion, sex or race; whichever complaint she pleads, understanding of the effect of the questions asked requires recognition of the intersection of these characteristics as relevant context.

The fourth ‘tool’ is to lead evidence of the intersectional nature of the disadvantage in arguments for remedy. The injury to feelings flowing from an act of discrimination classed by the court as being on grounds of religion may be more acute where the act implicates the claimant’s identity at the intersection of religion and another characteristic, such as sex. Evidence of this can, and should, be brought forward to ensure the complainer is appropriately compensated. In the award of financial losses, too, there may be scope to lead evidence of intersectional disadvantage. A Muslim woman, for example, who is successful in a complaint of religious discrimination in dismissal, could invite the court to consider, in the calculation of her financial loss, evidence of the particular difficulties experienced by Muslim women in the labour market.

To conclude, in the absence of Parliamentary attention being given to the need to tackle and offer redress for intersectional discrimination, our courts and litigators have an important role to play to ensure our anti-discrimination laws in practice reflect the true lived experience of disadvantage.

Written by Dr Catriona Cannon, Lecturer in Equality Law, University of Glasgow. This article is adapted from: Cannon C (2023). Muslim Women in the Workplace and the Equality Act 2010: Opportunities for an Intersectional Analysis of Disadvantage. International Journal of Discrimination and the Law. 23(3), 185-215.