Multiple Discrimination in the UK
A Failure to Recognise Direct and Indirect Multiple Discrimimination
Although the existence of multiple discrimination, whether direct or indirect, has long been recognised by theorists, there is still a tendency in the UK for claimants to plead only one ground of discrimination. Although the decision to plead only one ground is often taken to ensure the claimant has the greatest chance of success, it means that the courts do not have to consider the true nature of the discrimination suffered. Until a clear understanding of multiple discrimination is reached, true equality cannot be guaranteed and there will not be adequate redress for those who suffer disadvantage.
Pleading Only One Ground
Although the decision to plead only one ground is generally taken to ensure the best chance for the claim to be successful, this tendency to plead only one ground is highly unsatisfactory for claimants as it effectively trivialises a part of their identity.
In her book, Sister Outsider: Essays and Speeches, the noted writer and feminist theorist Audre Lorde vocalised the issue well when she noted:
“As a Black lesbian feminist comfortable with the many different ingredients of my identity, and a women committed to racial and sexual freedom from oppression, I find I am constantly being encouraged to pluck out some one aspect of myself and present this as the meaningful whole, eclipsing or denying the other parts of self".
Given that the purpose of anti-discrimination legislation is to protect vulnerable groups from disadvantageous treatment, it is highly contrary that these same anti-discrimination laws fail to give adequate recognition to groups that they are supposed to protect.
Claims of Both Sex and Race Discrimination
Even when claimants do allege both the grounds of sex and race discrimination, courts and tribunals tend to look at them as one fused ground.
In Atijosan v Lambeth Service Team (2000), the claimant alleged both race and sex discrimination as grounds for unfair redundancy. The tribunal were obviously keen to avoid making any substantive ruling on the issue of multiple discrimination and continually referred to discrimination on the grounds of race/sex thus making it impossible to tell whether they considered the claimants adverse treatment to be due to sex discrimination, race discrimination, an additive combination of the two, or an intersectional consequence of both.
A Legislative Failure
The failings of the anti-discrimination legislatiionare all too apparent even when claimants do allege indirect discrimination on the grounds of race AND sex discrimination. In Coker and Osamor v The Lord Chancellor (2002), the Lord Chancellor appointed a friend of his to the role of advisor. The role was not advertised, there was no particular application process, and the Lord Chancellor did not seek out anyone from outside his circle of friends for the role. Coker, a white woman, alleged that the appointment indirectly discriminated against her on the grounds of sex while Osamor, a black woman, claimed that it indirectly discriminated against her on the grounds of race and sex.
The Court of Appeal stated that the "requirement or condition" that the Lord Chancellor applied when considering persons for the role was that "only those personally known to the Lord Chancellor will be considered". The Lord Chancellor himself acknowledged that those who fitted into the pool of ‘personally known to him’ were most likely to be white males and that there would be few females or people from ethnic minorities considered at all.
Thus it can clearly be seen that in cases both of direct and indirect discrimination the tendency is still for the claimant, despite the multiple grounds of discrimination they may have suffered, to plead only a single ground. Even though claimants do often receive the desired remedy when they choose to plead only one ground, such a choice is still unsatisfactory due to its denial of the true circumstances of the discrimination suffered.
References:
Lorde, A (1984) Sister Outsider: Essays and Speeches (Trumansberg, NY: Crossing Press
Sister Outsider by Audre Lorde
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