Two Varieties of Discrimination
Under UK Law Multiple Discrimination Can Occur in Two Distinct Ways
Feb 16, 2008
As the legal recognition of discrimination has developed over time, so the number of proscribed grounds of discrimination have expanded and developed and, consequently, the number of claimants who believe they have suffered unfair treatment due to one or more characteristics has also grown. These people are said to have suffered 'multiple discrimination'.
Professor Sarah Hannett suggests that this issue of multiple discrimination can occur in at least two ways: "where the grounds of discrimination are additive in nature; and/or where the discrimination is based on an indivisible combination of two or more social characteristics". Hannett goes on to clarify that the first of these way, additive discrimination, occurs where an individual "belongs to two different groups, both of which are affected by [discriminatory] practices" while the second, intersectional discrimination, "arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone".
To gain a clear understanding of how these two forms of discrimination operate, it is important to consider the relevant case law.
Additive Discrimination
A useful example of additive discrimination can be seen in the facts of Perera v Civil Service Commission (No. 2) (1983) where the employer in question decided on a series of requirements for potential employees. After taking into account his nationality, his grasp of the English language, his time in the UK, and his age, the interview panel decided against employing Perera. There was no one particular factor which meant that he did not get the job, rather he was considered unsuitable in the potential employer’s eyes due to social factor upon social factor. This case demonstarates how a person's employability can effectively decrease in proportion to the increase in the number of undesirable social characteristics than those interviewing him identified.
More recently, in Nwoke v Government Legal Service & Civil Service Commissioners (2000), a black woman, applied for a job with the Government Legal Service and was given the lowest rank possible by the interview panel. It was established that white applicants were ranked higher than black applicants even if their degree classification was lower. Also, even though white women were ranked higher, women in general were less likely to be appointed than men and, if they were employed, would be paid less than male colleagues. It was also shown that the only person on a temporary contract with the Government Legal Service not to be made permanent was a black woman. Nwoke was successful in her claim of sex and race discrimination. The facts of this case demonstrate how additive discrimination can occur since Nwoke was disadvantaged because she was both black and a woman.
Intersectional Discrimination
Intersectional discrimination is often to be found in cases involving racism and sexism. Professors Fredman and Szyszak have in fact suggested that "the cumulative effect of race and sex discrimination is not simply additive. Black women experience problems not shared by either white women or black man". The operation of intersectional discrimination can be seen in the facts Burton and Rhule v De Vere Hotels where two black waitresses were subjected to racist and sexist comments while working at a hotel function. The facts show, therefore, that if they had been white women or black men then they would not have suffered the same discriminatory treatment, rather they suffered because they were black women, and so the grounds of discrimination in this case can be seen to be indivisible.
Recognition of Multiple Discrimination
Given therefore that there are two identifiable varieties of multiple discrimination, it is clear the UK legislation must be made to acknowledge the existence of the phenomenon otherwise many claimants will fail to receive adequate protection.
References:
Hannett, S. "Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination" (2003) 23 Oxford Journal of Legal Studies 65
Shoben, E.W. "Compound Discrimination: The Interaction of Race and Sex in Employment Discrimination" (1980) 55 NYU Law Rev 793
Fredman, S. and Szyszak, E. "The Intersection of Race and Gender" in Hepple and Szyzak (eds) Discrimination: The Limits of the Law (1993) (London)
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