MULTIDIMENSIONAL DISCRIMINATION IN JUDICIAL PRACTICE A LEGAL COMPARISON BETWEEN DENMARK

MULTIDIMENSIONAL DISCRIMINATION IN JUDICIAL PRACTICE A LEGAL COMPARISON BETWEEN DENMARK, NORWAY, SWEDEN AND THE NETHERLANDS12

Merel Jonker* and Sigtona Halrynjo** Abstract The concept of multidimensional discrimination is claimed to pose considerable challenges for judicial practice. The methods for tackling discrimination on more than one ground have been extensively discussed in the literature but not yet comprehensively analysed empirically. The present study compares and analyses the case law of the Dutch, Norwegian, Swedish and Danish equality bodies concerning gender-plus discrimination in the labour market. Based on 74 cases, the comparison shows that neither integrated equality bodies nor anti-discrimination legislation is a prerequisite to protect against multidimensional discrimination, and that the appointment of comparators occurs on pragmatic grounds. These findings suggest that multidimensional discrimination can be adequately dealt with in judicial practice. Keywords: comparator; gender; intersectionality; multidimensional discrimination; national equality bodies

1.

INTRODUCTION

The right to freedom from discrimination is recognised as a fundamental human right and is therefore protected by international and national laws. In recent years, it has been argued that these laws, although adequate to counteract discrimination on single grounds, are unable to protect citizens when they face discrimination on more than one ground. Hence, the concept of so-called multidimensional *

**

408

Dr. M. Jonker is a Postdoctoral Research Fellow at the Molengraaff Institute for Private Law, Utrecht University. Th is research was conducted during her tenure at the Institute for Social Research in Oslo. Dr. S. Halrynjo is Senior Research Fellow at the Institute for Social Research in Oslo. The authors wish to thank The Norwegian Research Council for their funding and M. Teigen, L. Reisel and V. Ho for their comments and suggestions on earlier versions of this manuscript. Netherlands Quarterly of Human Rights, Vol. 32/4, 408–433, 2014. © Netherlands Institute of Human Rights (SIM), Printed in the Netherlands.

Multidimensional Discrimination in Judicial Practice

discrimination is claimed to pose considerable challenges for judicial practice.1 Since the landmark formulation of its foundations by Crenshaw in 1989, the implications of various forms of discrimination intensifying and interacting with each other have gained prominence on both the academic and political agenda. Crenshaw was primarily concerned with intersecting inequalities experienced by AfricanAmerican women in the US that resulted from their race and sex.2 At present, the potential for multidimensional discrimination within the European Union is great. In 1999, the Amsterdam Treaty expanded discrimination grounds beyond gender and nationality, including race and ethnic origin, religion or belief, age, disability and sexual orientation.3 Based on this treaty, four important anti-discrimination directives have been enacted over the last decade: Council Directive (EC) 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; Council Directive (EC) 2000/78 establishing a general framework for equal treatment in employment and occupation; Council Directive 2004/113/ EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services; and Council Directive (EC) 2006/54 implementing the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. As a result, Member States have to address not only the additive effects of multiple discrimination grounds but also the interaction between these grounds.4 However, although legal protection has indeed been extended by Member State legislators to include multiple discrimination grounds, and in spite of specific references to multidimensional discrimination in the recitals of the EU directives, it remains unclear whether the fundamental right to freedom from (multidimensional) discrimination is adequately protected within existing judicial practice. Enforcing non-discrimination law is one of the means to protect this fundamental human right. The methods for tackling multidimensional discrimination in judicial practice have been extensively discussed in political as well as legal science. In the political literature, the merits of establishing an integrated enforcement body and amending legislation to treat multidimensional cases, for instance, have been the 1

2

3

4

See S. Burri and D. Schiek, Multiple Discrimination in EU Law: Opportunities for Legal Responses to Intersectional Gender Discriminination (European Commission 2009) 18–19; A. Borchorst and others, ‘Institutionalizing Intersectionality in the Nordic Countries: Anti-Discrimination and Equality in Denmark, Finland, Norway and Sweden’ in A. Krizsán, H. Skjeie, and J. Squires (eds), Institutionalizing Intersectionality: The Changing Nature of European Equality Regimes (Palgrave Macmillan 2012) 78; J. Gerards, ‘Grounds of Discrimination’ in M, Bell, L, Waddington and D, Schiek (eds), Ius Commune Case Books for a Common Law of Europe: Non-Discrimination (Hart 2007) 172–173. K. Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) U. Chi. Legal F 139. Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 1997 O.J. C 340/1. A. Krizsán, H. Skjeie, and J. Squires (eds), Institutionalizing Intersectionality: The Changing Nature of European Equality Regimes (Palgrave Macmillan 2012).

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subject of debate.5 This issue has become even more pressing since an analysis by the European Commission revealed that legal practitioners either do not recognize the problem of multidimensional discrimination or do not perceive the matter as problematic since they may opt for the practical approach of choosing the strongest ground in their cases.6 Legal scientists, on the other hand, have expressed concerns as to whether allowing more than one ground in discrimination cases is at all possible given the current compartmentalisation of law and procedures. Another anticipated difficulty lies in the appointment of an appropriate comparator.7 On the basis of the EU Non-discrimination Directives, a comparison should be made between the complainant and another (possibly hypothetical) person in a comparable situation in order to establish a discrimination case. However, especially in the case of multiple inequalities a suitable comparator may be difficult to identify or will not be available at all. It is recognized that in stereotyping and harassment cases a conceptual (or anti-stereotyping) approach is more suitable, and scholars have therefore pleaded for adopting this approach in intersectional discrimination cases.8 Several studies have elucidated the political processes involved in establishing integrated legal frameworks.9 In addition, studies have been conducted to examine the approaches of the European Court of Justice and the European Court of Human Rights.10 Little is known, however, regarding national practices in dealing with multidimensional discrimination. National equality bodies, responsible for the enforcement of non-discrimination law, represent one of the arenas where this kind of ‘everyday’ human rights violation becomes visible. Legal comparisons between EU countries have provided information on how multidimensional discrimination cases are treated by the legal systems in these States. These reports have also included the expert opinions of practitioners on such cases. These comparisons, however, were based on a limited number of cases (one or two) per country, which were taken to exemplify the problem from an international perspective.11 A few studies have also 5

6 7

8

9

10

11

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S. Hannet, ‘Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination’ (2003) 23 Oxford Journal of Legal Studies 65; M. Verloo and others, ‘Putting Intersectionality into Practice in Different Configurations of Equality Architecture: Belgium and the Netherlands’ (2012) 19 Social Politics 513. European Commission, Tackling Multiple Discrimination, Practices, Policies and Laws (2007). J. Gerards, ‘Grounds of Discrimination’ in M, Bell, L, Waddington and D, Schiek (eds), Ius Commune Case Books for a Common Law of Europe: Non-Discrimination (Hart 2007) 172ff. S.B. Goldberg, ‘Discrimination by Comparison’ (2011) The Yale Law Journal 731; A. Timmer, ‘Toward an Anti-Stereotyping Approach for the European Court of Human Rights’ (2011) Human Rights Law Review 707. Krizsán (n 4); L. Rolandsen Agustin, Gender Equality, Intersectionality, and Diversity in Europe (Palgrave Macmillan 2013); L. Reisel, ‘Legal Harmonization and Intersectionality in Swedish and Norwegian Anti-discrimination Reform’ (2014) Social Politics 1. D. Schiek and V. Chege, European Union Non-Discrimination Law, Comparative perspectives on multidimensional equality law (Routledge-Cavendish 2008). European Commission (n 6); S. Burri and D. Schiek, Multiple Discrimination in EU Law: Opportunities for Legal Responses to Intersectional Gender Discriminination (European Commission

Intersentia

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explored the treatment of discrimination cases within the national equality bodies.12 However, these studies emphasise changes in the structure and limit their empirical analyses to a few cases to exemplify their findings and conclusions. Therefore, to gain further insight into the characteristics of multidimensional discrimination cases and into their treatment by equality bodies, more comprehensive and systematic analyses of these cases are needed. The present study compares and analyses the case law of the Dutch, Norwegian, Swedish and Danish equality bodies concerning gender-plus discrimination in the labour market. This means discrimination based on gender and at least one other discrimination ground. The focus was specifically on gender cases since it is most often women who are presumed to experience multidimensional discrimination.13 The scope was limited to the labour market because multidimensional discrimination has been reported to occur most often in this field.14 Three main questions are addressed. The first question concerns the characterisations of the cases: Who experiences which form of multiple discrimination? Or, more specifically, which persons claim to be victims of which kind of discrimination? To answer this, the complainants filing for discrimination and the grounds registered by the enforcement bodies are described. Second, the way in which multidimensional discrimination cases were treated by the enforcement bodies in each country are examined, with a focus on the comparators appointed in such cases. Ideally, this may provide indications for a common core or a best practice in dealing with this kind of cases. Lastly, the structure of the equality body as well as the structure of the legislation are examined, to determine whether these affect the treatment of multidimensional discrimination cases. The comparison follows a functional approach,15 investigating how different legal systems deal with a particular problem encountered in (legal) practice.16 The selection of countries was directed by the topic and objectives of the research.17 All countries

12

13

14 15 16

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2009); I. Charles and O. Jubany-Baucells, Genderace: The Use of Racial Antidiscrimination Laws, Gender and Citizenship in a Multicultural Context (EU Seventh Framework Programme 2010). H. Skjeie and T. Langvasbråten, ‘Intersectionality in Practice?’ (2009) International Feminist Journal of Politics 513; M. Verloo and others, ‘Putting Intersectionality into Practice in Different Configurations of Equality Architecture: Belgium and the Netherlands’ (2012) Social Politics 513; M. Verloo and S. Walby, ‘Introduction: The Implications for Theory and Practice of Comparing the Treatment of Intersectionality in the Equality Architecture in Europe’ (2012) Social Politics 433. Preambles to the Racial Equality Directive (Council Directive 2000/43/EC of 29  June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22) and the Employment Equality Directive (Council Directive 2000/78/EC of 27  November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16). See European Commission (n 6) at 5. K. Zweigert and H. Kötz, An introduction to Comparative Law (Clarendon Press 1998) 34. D. Kokkini-Iatridou, ‘Some Methodological Aspects of Comparative Law, The Th ird Part of a (pre) Paradigm’ (1986) XXXIII Netherlands International Law Review 161. A.E. Oderkerk, ‘The importance of context: selecting legal systems in comparative legal research’ (2001) XLVIII Netherlands International Law Review 311.

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selected are familiar with the challenges of multidimensional discrimination, and gender-plus discrimination cases form the tertium comparationis (the common comparative denominator) of the comparison. Furthermore, the countries are generally considered to have a common social structure while undergoing similar socio-economic developments. In addition, they are all obliged to meet the requirements of the binding EU anti-discrimination legislation (see Section 2). This implies that they may face comparable problems in judicial practice.18 The Netherlands, has a long tradition of an integrated enforcement body and semiintegrated legislation with regard to the labour market. From a legal comparative perspective, this situation invites analysis with regard to multidimensional discrimination since the Dutch equality body is expected to have considerable experience in dealing with multidimensional cases.19 For instance, it was concluded that the Dutch equality architecture seems promising for accommodating discrimination cases involving more than one ground, partly because the Dutch equality body appears to be aware of the intricacies of such cases.20 In the Scandinavian countries, multidimensional discrimination has more recently acquired a more prominent position in equality politics since these countries have undertaken steps towards a ‘multidimensional anti-discrimination legal-political agenda’ over the last few years.21 In Denmark, Norway and Sweden, enforcement authorities have been reorganised into integrated bodies. In addition, policy-makers discussed proposals for amending existing anti-discrimination legislation to deal with multidimensional discrimination cases. While the argument in favour of an integrated approach put forward in all three countries was the ability to tackle multidimensional discrimination, the way in which anti-discrimination policies have been implemented differ between them.22 In the next section, the challenges of multidimensional discrimination in judicial practice are discussed in more detail. Section 3 describes the political context in which the equality bodies and national anti-discrimination legislation of the four countries were established. The results of the comparative analysis are presented in Section 4. Finally, in Section 5, some conclusions are drawn on how multidimensional discrimination is tackled in practice in the examined countries.

18 19

20 21

22

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Th. M. de Boer, ‘Vergelijkenderwijs: de inspiratie van buitenlandsrecht’ (1992) 6033 WPNR 46. S. Burri, ‘Promises of an Intersectional Approach in Practice? The Dutch Equal Treatment Commission’s Case Law’ in D. Schiek and A. Lawson (eds), European Union non-discrimination law and intersectionality: investigating the triangle of racial, gender and disability discrimination (Ashgate Pub 2011) 97. See Verloo (n 5) 531. A. Borchorst and others, ‘Institutionalizing Intersectionality in the Nordic Countries: AntiDiscrimination and Equality in Denmark, Finland, Norway and Sweden’ in A. Krizsán, H. Skjeie, and J. Squires (eds), Institutionalizing Intersectionality: The Changing Nature of European Equality Regimes (Palgrave Macmillan 2012) 81. Ibid, 81.

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2.

CHALLENGES OF MULTIDIMENSIONAL DISCRIMINATION IN JUDICIAL PRACTICE

In the analysis multidimensional discrimination is used as an overarching term to denote discrimination on more than one ground. A distinction is made between additive and intersectional discrimination. Additive discrimination entails that a person ‘belongs to two different groups, both of which are affected by (discriminatory) practices’.23 Furthermore, the discrimination grounds ‘add to each other’ and can be distinguished from one another.24 For example, suppose a woman worked for twenty years at a financial institution, when she got fired. She claims the institution to be ‘women-unfriendly’ because women would not have the same carrier opportunities as men. Furthermore she states that this is especially the case for “older women”. In this situation the discrimination grounds of gender and age enhance each other (NL 2009/1). Intersectional discrimination refers to the situation in which the discrimination grounds ‘intersect with each other’ and therefore cannot be disentangled, leading to a specific form of discrimination.25 Suppose a woman of Eastern European descent experiences harassment at her job, because she is called names that refer to Eastern European prostitutes (Se 2009/1). In this case, the discrimination grounds gender and ethnicity are intertwined and cannot be dealt with separately. In policy analyses and legal literature, several challenges concerning multidimensional discrimination have been highlighted. One of the issues extensively discussed in the political sciences is that of the fragmented structures of both national anti-discrimination legislation and equality bodies as obstacles to dealing with multidimensional discrimination cases. Referring to the former situation in the United Kingdom, Hannett, for instance, concludes that ‘enacting a single antidiscrimination statute with a corresponding single commission would overcome some of the existing conceptual and practical barriers to pleading multiple heads of discrimination, whether additive or intersectional’.26 Due to European encouragement, structures of anti-discrimination legislation and enforcement bodies have undergone significant changes in the past decade. Since the EU directives only required the establishment of equality bodies for the enforcement of gender and race discrimination, Member States have to a large extent been left free to determine how these directives were to be implemented with regard to the enforcement of anti-discrimination legislation. Nevertheless, most countries chose to 23

24

25 26

See Hannett (n 5) 68 (referring to E.W. Shoben, ‘Compound Discrimination: The Interaction of Race and Sex in Employment Discrimination’ (1980) 55 NYU Law Rev 793). T. Makkonen, Multiple, compound and intersectional discrimination: Bringing the experiences of the most marginalized to the fore (Institute for Human Rights, Åbo Akademi University 2002) 11; Burri and Schiek (n 11) 3. Ibid. See Hannett (n 5) 85. The English situation changed in 2010, see S. Walby, J. Armstrong and S. Strid, ‘Intersectionality and the Quality of the Gender Equality Architecture’ (2012) 19 Social Politics 446.

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unify their enforcement bodies to cover all discrimination grounds.27 The justifications for this approach not only mention the expected increase in the efficiency of such structures,28 but also the possibility for equality bodies to deal with multidimensional discrimination more effectively.29 Some scholars have warned against the possible consequences of the abovementioned developments. Critics have stated that a multidimensional approach may in effect derogate from gender equality.30 At the same time, questions have been raised as to whether these changes are indeed sufficient to alter judicial practices. In order to adequately treat multidimensional cases, merely adjusting the institutional design of legislation and enforcement would not be enough.31 Instead, it is necessary to also achieve changes in judicial reasoning, since the dominant way of legal thinking results in single-ground approaches being more easily followed.32 A report by the European Commission confirms that legal practitioners generally apply a pragmatic approach by choosing the ‘strongest ground’ whenever more discrimination grounds are involved.33 This tendency would contribute to creating a ‘no cases’ problem of multiple discrimination in judicial practice, since cases are compartmentalised according to single grounds.34 Legal scholars stress three main challenges with regard to the treatment of multidimensional discrimination in practice: a lack of awareness, compartmentalisation, and the comparator approach. Regarding a lack of awareness, legal practitioners may not be fully aware of multidimensional discrimination as it is a relatively new issue in legal practice.35 Hence, to promote awareness, some advocate clear mandates for equality bodies.36 The second challenge concerns compartmentalisation, meaning that different material and personal scopes exists for the different discrimination grounds. Anti-discrimination acts might thus be only 27

28

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30

31 32

33 34 35 36

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J. Kantola and K. Nousiainen, ‘Institutionalizing Intersectionality in Europe’ (2009) 11 International Feminist Journal of Politics 470; C. Sheppard, ‘Multiple Discrimination in the World of Work’ (2011) Working Paper no. 66 International Labour Organization. J. Squires, ‘Intersecting Inequalities’ (2009) 11 International Feminist Journal of Politics 496 (referring to the British situation). See also section 3 for the Dutch and Scandinavian situation. See European Commission (n 6) 22; European commission, Equality and Non-Discrimination in an Enlarged European Union (2004) Green paper. E. Lombardo and M. Verloo, ‘Institutionalizing Intersectionality in the European Union?’ (2009) 11 International Feminist Journal of Politics 490; Walby, Armstrong and Strid (n 26); Borchorst (n 21); H. Skjeie, ‘Multiple equality claims in the practice of the Norwegian anti-discrimination agencies’ in D. Schiek and V. Chege, European Union Non-Discrimination Law, Comparative perspectives on multidimensional equality law (Routledge 2008) 295–296. M. Bell, Anti-Discrimination Law and the European Union (OUP 2002) 212; Verloo (n 5) 530–533. I. Solanke, ‘Stigma, A limiting principle allowing multiple-consciousness in anti-discrimination law’ in D. Schiek and V. Chege, European Union Non-Discrimination Law, Comparative perspectives on multidimensional equality law’ (Routledge 2008) 130. See European Commission (n 6) 21. See Skjeie (n 30) 303, referring to the Norwegian situation. See Burri and Schiek (n 11) 18–19. See Borchorst (n 21) 78.

Intersentia

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applicable to certain individuals and/or in certain fields. As a result, differences in legal protection exist and discrimination based on more than one ground might only be covered partly by law.37 The third challenge concerns the comparator approach. Current anti-discrimination law, inspired by the UK system, requires a comparison of the complainant with a person who is similar in all respects but for the discrimination ground.38 It would clearly become more difficult to appoint the right comparator when there is more than one discriminatory ground.39 In the example of an elderly woman who is refused a job which she applied for and who suspects that she is being discriminated against on the basis of her gender and age, possible comparators may include men, youngsters, elderly men, female youngsters and even male youngsters. Goldberg, referring to the American situation, argues, for this reason, that the comparator approach should be ‘dethroned’ in favour of a ‘contextual methodology’.40 Under the latter, all circumstances of a case have to be taken into account, including the acts, statements and intensions of an employer.

3.

NATIONAL CONTEXT: LEGISLATION, EQUALITY BODIES AND POLITICAL DISCOURSES

All four countries in the study have established national integrated equality bodies for the prevention and enforcement of discrimination, although they differ concerning when these integrated organs came into force. In the Netherlands, the Equal Treatment Commission (Commissie gelijke behandeling) was already established in 1994,41 following the extension of Dutch national anti-discrimination legislation. In the Scandinavian countries, integrated enforcement bodies were created as a result of the extended anti-discrimination legislation by the EU.42 The first to be established in 2006 was the Equality and Anti-Discrimination Ombud (Likestillings- og diskrimineringsombudet) in Norway.43 The main aim was to provide for accessibility and rapid procedures. In addition, integrating the previous equality bodies was expected to reduce the costs of enforcement, leading to greater efficiency. Furthermore, it was argued that an integrated enforcement body would be able to 37 38 39 40 41

42 43

See Gerards (n 7) 172–173; Burri and Schiek (n 11) 18–19. See Goldberg (n 8) 731. See European Commission (n 6); Gerards (n 7) 172–173; Burri and Schiek (n 11) 18–19. See Goldberg (n 8) 812. The Dutch Equal Treatment Commission replaced the Commissions concerning equal pay and equal treatment in the workplace. Since October 2012, the Equal Treatment Commission has been incorporated into the Netherlands Institute for Human Rights (College voor de Rechten van de Mens). Ot. prp. nr. 34 (2004–2005), NOU 2011:18, 122–123. The Norwegian Equality and Anti-Discrimination Ombud was an integration of the Centre for Equality (Likestillingssenteret), the Equality Ombud (Likestillingsombudet) and the Centre Against Ethnic Discrimination (Senter mot etnisk diskriminering).

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counter multidimensional discrimination.44 In Sweden and Denmark, integrated enforcement bodies were only operational from 2009 onwards. Here, too, accessibility and guaranteeing effective legal protection for persons who experience discrimination on more than one ground were among the motives for establishing the Swedish Equality Ombudsman (Diskrimineringsombudsmannen)45 and the Danish Board of Equal Treatment (Ligebehandlingsnævnet).46 Considering the anti-discrimination legislation, there are considerable differences between the countries’ legislative structures. An important division can be made between a separated and non-separated structure. The current Norwegian anti-discrimination legislation may be defi ned as separated, since it consists of several Acts covering different discrimination grounds (in all fields). The legislation does not provide for a specific rule concerning multidimensional discrimination. However, the equality body has an explicit mandate to consider all relevant discrimination grounds in a case.47 Proposals have been made to integrate the legislation48 and to add a provision that protects against multidimensional discrimination.49 Until now, the government has refused to integrate the antidiscrimination legislation, because separated legislation would provide for more protection against female discrimination. The Norwegian authorities have also refrained from defi ning multidimensional discrimination, as they argue that this would not lead to more legal protection; in the absence of such a provision, the equality body had already exerted its mandate to judge cases on more than one ground.50 In March 2014, however, the discussion has started all over again, since the minister of Children, Equality and Social Inclusion announced that the Ministry will look at the integration of the Norwegian anti- discrimination legislation.51 The Netherlands has semi-integrated legislation with regard to discrimination on the labour market (the Equal Treatment Act), with one act covering several grounds in specific fields. No provision exists concerning multidimensional discrimination. In 2009, the Equal Treatment Commission evaluated the anti-discrimination 44 45

46

47

48 49 50 51

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Ot. prp. nr. 34 (2004–2005). The Equality Ombudsman replaced the following former Ombudsmen: The Equal Opportunities Ombudsman (JämO), the Ombudsman against Ethnic Discrimination (DO), the Disability Ombudsman (HO) and the Ombudsman against Discrimination on grounds of Sexual Orientation (HomO). Forslag til Lov om Ligebehandlingsnævnet, 2007/2 LSF 41, p.  3–4. The Danish Board of Equal Treatment replaced the Gender Equality Board (Ligestillingsnævnet) and the Complaints Committee for Ethnic Equal Treatment (Klagekomitéen for Etnisk Ligebehandling). Forskrift om organisasjon og virksomhet for Likestillings- og diskrimineringsombudet og Likestillings- og diskrimineringsnemnda, art. 1 section 2. Norges Offentlige Utredninger 2009: 14. Norges Offentlige Utredninger 2011:18, 46. Proposisjon til Stortinget 88 L (2012–2013), 47, 92–94. Www.regjeringen.no/nb/dep/bld/aktuelt/nyheter/2014/Starter-arbeidet-med-ny-lov.html?regj_ oss=1&id=753398 (Press-release Norwegian Government, accessed on 30th of October 2014).

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legislation, and discrimination on more than one ground was extensively discussed. On the basis of this evaluation, the Commission advised the government to examine in what way an explicit prohibition of multidimensional discrimination could be regulated because this would increase legal certainty and awareness.52 However, the Dutch government decided not to follow this advice, since the enforcement body in practice was considered more than able to deal with multidimensional discrimination cases.53 Denmark also has semi-integrated anti-discrimination legislation with regard to discrimination in the workplace.54 According to Danish researchers, the main reason behind the introduction of this legislation was probably European pressure.55 Multidimensional discrimination is not regulated by law. In 2007, the Institute for Human Rights advised the government to adopt legislation that contains a general prohibition against discrimination including all discrimination grounds and all fields.56 However, the government decided to only establish a single equality board, and integrated legislation was not implemented, nor was a provision concerning multidimensional/intersectional discrimination.57 Sweden has integrated anti-discrimination legislation covering different fields and several grounds. The main aim of this reform was to provide for effective and more comprehensible legislation that would promote equal rights and combat discrimination. The Swedish anti-discrimination legislation does not contain a provision concerning multidimensional discrimination, but one of the aims of the reform was to guarantee protection against multidimensional discrimination.58 Given the different national contexts, the question arises (if and) how these differences influence the way enforcement bodies in these countries treat multidimensional discrimination cases. Today, all countries have an integrated enforcement body and, given the political discourse, all countries are expected to deal with these kinds of cases. The next section describes the selection of the multidimensional discrimination cases, their characteristics and the way these cases are dealt with by the equality bodies in the four countries.

52

53 54 55

56

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Commissie Gelijke Behandeling, Derde Evalautie AWGB, WGB m/v en artikel 7:464 BW, Over de periode 1 september 2004 tot 1 september 2009 (2011). Kamerstukken II (2011–2012), 28481, nr. 16, p. 3–4, Kamerstukken II (2011–2012), 28481, nr. 17. The Danish Law on the prohibition of different treatment on the labour market. A. Andersen, R. Nielsen and K. Precht, Ligestillingslovene: med kommentarer bind 1 (Jurist- og Økonomforbundets forl. 2008) 27. Danish Institute for Human Rights, Effektiv beskyttelse mod discrimination – om retlige og faktiske tiltag (2007) 15. A. Borchorst, ‘The Danish Board of Equal Treatment – Context, institutional architecture, framing and Praxis’ (2011) Working paper Aalborg University 9. Statens offentliga utredningar 2006:22 En sammanhållen diskrimineringslagstiftning.

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4.

COMPARATIVE ANALYSIS: RESULTS OF THE STUDY

4.1.

SELECTION CRITERIA

In the study, decisions of the Dutch, Norwegian, Swedish and Danish equality bodies were compared and analysed. Cases which were registered as having more than one discrimination ground – including gender – and which were situated in the labour market were selected. Since one of the aims is to compare the situation before and after the establishment of the integrated enforcement bodies in Sweden and Denmark, cases emanating from complainants between 2007 and 2010 were selected; two years before and two years after the establishment of these bodies in 2009. While the data provide a more or less complete overview of the Dutch and Norwegian situation, the Swedish and Danish cases dealt with by their national equality bodies comprise a selection of all possible multidimensional discrimination cases. For a valid comparison, cases that were registered with the trade unions in Sweden and Denmark were excluded. The exact number of such cases is unclear but may be considerable given the fact that trade union members are obliged to first fi le a complaint with their union before they are allowed to bring their case to the national equality body in these countries. However, since it was the intention to specifically examine the equality bodies’ treatment of multidimensional discrimination, the lack of trade union cases does not invalidate the fi ndings. Upon request, an overview of the cases registered on more than one ground were provided by the Dutch, Norwegian and Danish enforcement bodies. For an overview of the Swedish cases, the archives of the Swedish equality body, which were accessible through the internet, were consulted. In total, 74 cases were retrieved: 11 Swedish cases (6 before and 5 after 1 January 2009), 2 Danish cases (both after 1 January 2009), 34 Dutch cases (25 before and 9 after 1 January 2009) and 27 Norwegian cases (11 before and 16 after 1 January 2009).

4.2.

CHARACTERISTICS OF THE CASES

Two kinds of cases can be distinguished: cases with a specific complainant (50 cases) and cases without a specific complainant (24 cases). In the latter, a procedure is commenced by a discrimination agency, an employer or by the enforcement body itself. The following tables show the number of cases registered as multidimensional discrimination for each country and time period. Table 1 shows the distribution of complainant cases across discrimination grounds, mentioning the structure of the equality bodies and legislation and indicating in which of these cases a woman (W) is disadvantaged. Table 2 (presented later) shows the number of ‘non-complainant’ cases.

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Table 1. Complainant cases Country

The Netherlands

Period

2007– 2008

2009– 2010

Norway 2007– 2008

Sweden

2009– 2010

2007– 2008

Denmark

2009– 2010

2007– 2008

2009– 2010

Equality body

Integrated Integrated Integrated Integrated Separated Integrated Separated Integrated

Legislation

Separated Separated Separated Separated Separated Integrated Separated Separated

Number of cases

16 (10W)

8 (6W)

8 (6W)

5 (0W)

6 (6W)

5 (5W)

0

2 (1W)

N/A

 1 (0W)

Discrimination grounds*: gender+  Age

9 (4W)

4 (2W)

4 (2W)

4 (0W)

2 (2W)

1 (1W)

Ethnicity/ Nationality

3 (2W)

2 (2W)

1 (1W)

1 (0W)

2 (2W)

2 (2W)

 1 (1W)

Religion

–

1 (1W)

3 (3W)

–

1 (1W)

1 (1W)

–

Handicap

–

–

–

–

1 (1W)

–

–

Sexual orientation

–

1 (0W)

1 (1W)

–

–

–

–

Marital status

2 (2W)

1 (0W)

–

–

–

–

–

Parental leave

–

–

–

–

2 (2W)

2 (2W)

–

5 (5W)

2 (2W)

–

–

–

–

–

Part time/fi xed-term contract

* Grounds scrutinized. Some cases involve more than two grounds and the sum of discrimination grounds therefore exceeds the total number of cases.

Cases in which the discrimination grounds of age and gender are contended – mainly recruitment cases – form the majority among those with a specific complainant. These kind of cases are registered in the Netherlands, Norway and Sweden, but not in Denmark. The majority involve additive discrimination, in which mostly elderly men file a complaint. In Sweden, however, the complainants were all women and intersectional discrimination was claimed in two of the three cases (see table 3). In all countries, a significant number of cases concern a combination of gender and ethnicity and/or religious discrimination. In the cases examined, it is mainly women who file a complaint regarding harassment or because they feel discriminated, for instance for wearing a hijab. While the harassment cases form a clear example of intersectional discrimination cases, the situation is less clear for the hijab cases: these might be considered as religious discrimination only. Even though hijab cases have been pointed out as paradigm examples of intersectional discrimination, a recent empirical study argues that treating hijab cases as ‘religious discrimination only’ might be sufficient both for providing legal protection and in order to recognize the complainant’s experience.59

59

S. Halrynjo and M. Jonker, ‘Naming and framing of intersectionality in Hijab cases – does it matter? An analysis of discrimination cases in Scandinavia and the Netherlands’ (forthcoming).

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Whereas discrimination of employees working part time and employees with fi xed-term employment is taken into account by the Dutch enforcement body, this is not the case for the Scandinavian bodies. The reason for this difference in approach is that although this kind of discrimination is prohibited in the Scandinavian countries,60 none of the equality bodies has the competence to enforce discrimination of employees working part time and employees with fi xed-term employment.61 Given these differences, the Dutch system appears to provide for the most accessible enforcement body when it comes to this kind of discrimination. Although in both Norway and Sweden questions have been posed as to whether discrimination of employees working part time and employees with fi xed-term employment should be included in the integrated anti-discrimination legislation, integration has not taken place.62 Due to differences in registration systems, only Sweden considers gender and parental leave as two separate discrimination grounds covered by two different acts.63 In the other countries, parental leave falls under direct gender discrimination. The single Norwegian case in the study, in which parental leave plays an important role (No-2008/1), was indeed treated as direct gender discrimination (see 4.3.3. Integrated comparator approach). In both Norway and Denmark parents who have exercised their right to take parental leave are entitled to return to their job on terms that are not less favourable to them. Dutch legislation, on the other hand, does not explicitly mention parental leave, but on the basis of the case law of the European Court of Justice maternity leave is considered to be an inseparable consequence of pregnancy and is therefore treated the same as pregnancy.64 However, the right of parents to comparable working duties following parental leave is not laid down in Dutch legislation, a situation for which the European Commission has announced that it will bring the Netherlands before the European Court of Justice.65 The above-mentioned differences between the countries may result in different scopes of legal protection. Should discrimination based on pregnancy and parental leave be treated as multidimensional discrimination as is the case in Sweden? Since there is strong protection against gender discrimination in Norway and Denmark, it would not make sense to treat parental leave as a separate ground in these countries. 60

61

62

63 64 65

420

Article 13–1 section 3 Arbeidsmiljøloven (Norway); Lag (2002:293) om förbud mot diskriminering av deltidsarbetande arbetstagare och arbetstagare med tidsbegränsad anställning (Sweden); Article 11 Deltidslov (Denmark). Article 1 Diskrimineringsombudloven (Norway); Article 4–1 Diskrimineringslag (Sweden); Article 1 Lov om Ligebehandlingsnævnet (Denmark). Avdeling for kvinnerett, barnerett, likestillings- og diskrimineringsrett (KVIBALD), Institutt for offentlig rett Universitetet i Oslo, Høringsuttalelse til NOU 2009:14 – Et helhetlig diskrimineringsvern (2009); Regeringens proposition 2007/08:95, Ett starkare skydd mot diskriminering 86. Discrimination Act (Diskrimineringslag) and Parental Leave Act (Föräldraledighetslag). Case C-32/93 Carole Louise Webb v EMO Air Cargo (UK) Ltd. [1994] ECR I-03567. Http://europa.eu/rapid/press-release_IP-13–45_en.htm?locale=en (Press-release European Commission, accessed on 30 October 2014).

Intersentia

Multidimensional Discrimination in Judicial Practice

The fact that Sweden has a specific parental leave act that contains a provision against discrimination seems to be a technical difference in comparison with the other Scandinavian countries. However, the scope of protection appears to be the same. Based on the preparatory work of the Swedish Parental Leave Act, discrimination based on parental leave will have the same legal protection as discrimination based on pregnancy, which falls under direct gender discrimination.66 It is obvious that the Netherlands provides the least protection. This is not because gender and parental leave are not treated as multidimensional discrimination, but due to the fact that the right of parents to keep the same working duties following leave is not laid down by law. Table 2. Non-complainant cases Country

The Netherlands

Period

2007– 2008

Job advertisement Own practice/own initiative

Norway

Sweden

Denmark

2009– 2010

2007– 2008

2009– 2010

2007– 2008

2009– 2010

2007– 2008

2009– 2010

8 (4W)

–

2 (0W)

11 (3W)

–

–

–

–

1 (1W)

1(1W)

1 (1W)

Discrimination grounds: gender+ Age

6 (2W)

–

2(0W)

Ethnicity/Nationality

2 (1W)

–

1(1W)

Part time/fi xed-term contract

1 (1W)

1 (1W)

11(3W)

–

–

–

–

–

–

–

–

The cases without a specific complainant are all registered in either the Netherlands (10 cases) or Norway (14 cases). These kinds of cases were not available in either Sweden or Denmark. A reason for this may be that the equality bodies in Sweden and Denmark have different procedures for such cases, which do not lead to a formal discrimination case. Another explanation could be that these kinds of cases are all dealt with by the trade unions. In both the Netherlands and Norway, most of these cases concern job advertisements in which persons of a specific gender and a specific age are requested. More specifically, the advertisements often requested ‘adult females’, with an age indication varying from ‘older than early twenties’ to ‘older than 30 or 35 years of age’. This indicates intersectionality; only a specific group of a certain gender and age is preferred. However, this also means that in the event a younger man applying for the job, additional discrimination occurs, since both men and youngsters in general are disadvantaged. Although not literally stated, the formulations imply that elderly people are also not encouraged to apply for these jobs.

66

Regeringens proposition 2005/06:185, Förstärkning anställningsskyddslagen och föräldraledighetslagen, p. 76.

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och

förenkling

–

ändringar

i

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It seems that these kinds of cases are easy to deal with by the enforcement bodies. While in the Netherlands a hearing normally takes place, job advertisement cases are generally dealt with according to a written procedure. In all job advertisement cases, both in Norway and in the Netherlands, all discrimination grounds mentioned in the complaint were taken into account. In some cases, the enforcement bodies included an additional discrimination ground, not mentioned in the complaint. The discrimination grounds are treated separately, which makes sense since not only younger men are excluded but men and youngsters in general. Except for one case in Norway, the enforcement bodies decided in all other cases that discrimination had taken place on all grounds; the defendants were not able to justify the formulations in their job advertisements. In the one exceptional Norwegian case (No-2009/6), the defendant was a lingerie shop specializing in breast prostheses. The Norwegian equality body decided that it was not justified to request for an older person, but because of the special circumstances it was justified to ask for female applicants.

4.3.

TREATMENT: THE ROLE OF THE COMPARATOR

One of the major challenges of the equality bodies in tackling multidimensional discrimination is the appointment of a comparator.67 The question arises with whom complainants are compared. The cases show that the equality bodies use different approaches. Two main categories can be distinguished: cases in which a comparator is appointed and cases in which no comparator is appointed. These two categories can be divided into two subcategories: cases following a separated approach and those with an integrated approach. In a separated approach, the discrimination grounds are treated separately, while an integrated approach entails that the discrimination grounds are combined with each other. In the following, the different approaches will be exemplified through the cases in the study. Subsequently, an overview is provided of these approaches and the types of cases in which they are applied.

4.3.1. Separate comparator approach If an equality body applies the separate comparator approach, comparators are appointed for each discrimination ground. The comparator is either a specific person of a certain group. In a Dutch case, a woman fi led a complaint because she felt discriminated against based on her gender and age, resulting among other things in less salary (Nl-2008/8). She compared her starting salary with younger employees and argued that the company had unjustly neglected her (older) age. Although it is true that older employees generally have a higher starting salary, it is their experience, not their age, that determines the level of their salary. Therefore, the Dutch equality body considered age discrimination not to be proven. With regard to gender, the 67

422

See Burri and Schiek (n 11).

Intersentia

Multidimensional Discrimination in Judicial Practice

complainant was compared with two male colleagues with the same function within the company, who, according to the complainant, had less experience than her, while they did have a higher starting salary. However, the starting salary of one of the comparators was less than that of the complainant; therefore this comparator was not taken into account. The other comparator had a higher starting salary, but according to the defendant, he also had more relevant experience. The Dutch equality body concluded that discrimination based on gender was not proven. In the Danish cases each ground is also treated separately, and the complainants are compared with their colleagues. However, the complainants are not explicitly compared with a specific person in the same situation except for the protected ground. In one of the two cases, a teacher of Chinese descent filed a complaint with the Danish equality board (De-2010) after having been fired. She claimed that the reasons for dismissing her were because she was pregnant and because she had a Chinese background (she came to Denmark when she was 9 years of age). However, the school showed that it had made its decision before knowing of the pregnancy, which meant that gender discrimination had not taken place. As for the question whether she was discriminated against based on her ethnicity, the school submitted proof that ‘it had had teachers of Chinese ethnic descent before’ and that ‘it had employees of other ethnicities’. Therefore, discrimination based on ethnicity was not proven.

4.3.2. Separate non-comparator approach All cases categorized under the separate non-comparator approach concern additive discrimination. The additive character of the cases explains why the grounds are treated separately by the enforcement bodies. There may be several reasons to forgo appointing a comparator. First, some complainants provide insufficient arguments to substantiate that discrimination has taken place (Nl-2007/1). Subsequently, a comparison may simply be considered unnecessary. Second, the claim is based on a written or oral reaction by the employer, for instance, explaining that the complainant was not hired because of his or her gender or age (Nl-2007/10). Third, the European Court of Justice has decided that in cases concerning pregnancy it is not necessary to appoint a comparator.68 In addition, in the Norwegian hijab cases, the equality body does not use a comparator. However, the reasons for this are not clear.

4.3.3. Integrated comparator approach The integrated comparator approach can be divided into three sub-categories: the invariable approach, the opposite approach and the single ground approach. In the invariable approach, two kinds of comparators are appointed with one of the grounds 68

Case C-177/88 Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus [1990] ECR I-3941.

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as ‘invariable’. For instance, if an older woman files a complaint a comparison will take place with both older men (with age used as the invariable) and young women (with gender used as the invariable). A Swedish 62-year-old woman filed a complaint with the Swedish Equality Ombudsman (Sw-2009/3), after she was not recruited. Although she fulfilled all the requirements and had sufficient working experience, she was not invited for a job interview. Instead, ten other persons were invited, mainly younger women and a 60-year old man. The Ombudsman appointed both the youngsters and the elderly man as comparators, which may indicate that the case was treated as intersectional discrimination. Since the capacities of the complainant were comparable with the other applicants and the job agency had no sufficient reasons to refuse her, the Ombudsman decided that discrimination had occurred on the grounds of both gender and age. Subsequently, the case was brought before the court which reached the same conclusion. In the opposite approach, one comparator is used that represents the opposite of both grounds. A woman of Chinese origin fi led a complaint with the Dutch Equal Treatment Commission (Nl-2007/12). She claimed to have been discriminated on the grounds of gender and ethnicity because she earned less than her male colleague of Dutch descent, who was in the same situation. The Commission argued that a comparison had to be made between one man and one woman, referring to the Dutch Equal Treatment of Men and Women Act and the practice of the European Court of Justice. In addition, the Commission elaborated on the fact that in Dutch legislation no provision exists that clearly states who should be the comparator in a case of ethnic discrimination. However, in practice, the Commission applies the same method as for gender discrimination. For this reason, the Commission investigated the claim using the male colleague of Dutch descent as the comparator, thereby concluding that the comparison was applicable to both gender and ethnic discrimination. In the end, the Commission decided that an unjustified difference in pay existed between the complainant and the comparator and that discrimination had taken place on both grounds. Lastly, only one Norwegian and one Dutch case were explicitly treated as a single ground of discrimination, arguing that age discrimination formed part of the discrimination on the ground of gender. In the Norwegian case, a female solo ballet dancer filed a complaint with the Norwegian Equality and Anti-Discrimination Ombud (No-2008/1), and she argued that she had been discriminated on the ground of gender and age. She was only given secondary roles following two periods of parental leave, whereas she had often been given leading roles before her pregnancy. She stated that her physical condition was good enough to perform such solo roles. Although the employer acknowledged that the woman was given other kinds of roles after her absence, he explained that this was not because of her parental leave, but due to artistic considerations. The Ombud decided that the woman was in a ‘worse position’ after her parental leave and ‘had reasons to believe’ that this was caused by her leave. Artistic considerations by the employer did not justify such a drastic change of roles. It was not necessary to identify a comparator because discrimination based on parental leave

424

Intersentia

Multidimensional Discrimination in Judicial Practice

entailed a comparison with the situation before the leave.69 Although the woman also stated that she was discriminated on the ground of age, the Ombud decided that the complainant had provided insufficient evidence to prove this and considered that discrimination based on parental leave may ‘involve’ indirect age discrimination, since only women of a certain age are able to conceive children. Since gender discrimination was proven, it was not necessary to elaborate on age discrimination.

4.3.4. Integrated non-comparator approach According to the data, harassment cases exemplify the integrated non-comparator approach. In a number of cases, a harassment claim was filed by women of nonNorthern European descent and reference was made to both their gender and their ethnicity. In the Sw-2009/1-case, a woman was called an ‘eastern girl’ which clearly alluded to sex trafficking and prostitution. The ethnicity of a husband also led to a harassment claim. In Sw-2009/4, an employer mentioned during a job interview that she had bad experiences with employees who were married with an immigrant and asked questions relating to their relationship. The complainant argued that a woman married to a man of Swedish ethnic descent or a man married with an immigrant would not have been asked the same questions. Another harassment claim concerned gender and religion (Sw-2008/1). The employer was accused of making inappropriate comments about Muslim women. The following table provides an overview of the cases with a specific complainant, categorized according to the discrimination ground and the comparator approach. The case codes denote the country, the year of registration, the case number and whether the case concerned additive or intersectional discrimination. Although a common core was not observed across countries when comparing the cases with a specific complainant, the Netherlands did predominantly use a separated approach in these cases, either with or without a comparator. In contrast, Sweden applies an integrated approach, except for parental leave cases. In Norway, both separated and integrated approaches are applied. With regard to recruitment cases, Norway seems to prefer the integrated opposite comparator approach. In the two Danish cases, the separated comparator approach was applied.

69

Norwegian Gender Equality Act, art 3.

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425

426 Nl-2008/7 (add) Nl-2010/2 (add)

No-2009/3 (add)

Nl-2008/1 (add)

Nl-2008/12 (add)

 

 

 

 

 

 

Ethnicity

De-2010 (add)

 

Dismissal

 

 

 

Working duties/career opportunities

Pay

Nl-2009/1 (add)

 

No-2010/9 (add)

 

Dismissal

 

De-2009 (add)

Pension rights

 

Nl-2008/10 (intersec)

 

Recruitment

Nl-2008/8 (add)

Pay

Nl-2008/9 (add)

 

 

Nl-2009/3 (add)

Nl-2007/6 (add)

 

 

 

Nl-2007/2 (add)

 

 

 

Nl-2007/1 (add)  

No-2008/2 (add)

 

Nl-2007/10 (add)

Nl-2008/6 (add)

No-2007/1 (add)

No comparator

Separated

Comparator

Recruitment

Age

Gender+

Table 3. Comparator approach

Sw-2007/2 (intersec)

Sw-2009/3 (intersec)

Invariable

 

 

Nl-2007/12 (add)

 

 

 

 

 

 

 

 

No-2007/4 (add)

 

No-2010/5 (add)

No-2010/2 (add)

No-2008/3 (add)

Nl-2009/5 (add)

No-2008/1 (add)

Single ground

Integrated

Sw-2008/2 (add)

Opposite

Comparator

 

 

 

 

 

 

Nl-2009/4 (intersec)

No-2010/1 (intersec)

 

No comparator

Merel Jonker and Sigtona Halrynjo

Intersentia

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nl-2009/7 (add)

Nl-2007/8 (add)

Nl-2010/1 (add)

Nl-2007/7 (add)

Nl-2007/4 (add)

Nl-2008/3 (add)

 

 

 

Religion

Hijab

 

 

Handicap

 

Parental leave

 

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Part time/fi xed-term

 

 

 

 

 

 

 

 

 

 

Sw-2010 (add)

Sw-2009/2 (add)

Sw-2008/4 (add)

Sw-2007/1 (add)

 

Sw-2008/3 (add)

 

No-2008/5 (add)

No-2007/6 (add)

No-2007/3 (add)

 

 

 

 

 

No comparator

Separated

Comparator

Harassment

Gender+ Invariable

 

 

 

 

 

 

 

 

 

 

 

 

Opposite

Comparator Single ground

Integrated

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sw-2008/1 (intersec)

Nl-2009/6 (intersec)

Sw-2009/4 (intersec)

Sw-2009/1 (intersec)

No comparator

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A clear distinction can be observed between additive and intersectional discrimination cases. The majority of intersectional cases seem to be dealt with according to an integrated approach without a comparator. Instead of appointing a comparator, all circumstances of the case are taken into account. A considerable number of intersectional cases concern harassment, which is a typical example of discrimination where the two grounds cannot be disentangled. In practice, it is recognized that these kinds of cases do not suit a comparator approach, but have to be treated according to a contextual methodology.70 In two intersectional (recruitment) cases, the enforcement body followed an integrated approach with comparators. Interestingly, suitable comparators were available in these two cases, therefore a comparison was possible. Additive discrimination, on the other hand, is not treated in the same way. With regard to the studied recruitment cases, for example, the Dutch and Danish equality bodies exclusively apply a separated approach (with or without a comparator), while the Norwegian as well as the Swedish equality body primarily use an integrated comparator approach. The next section discusses whether these differences may be explained by differences in the structure of the equality bodies and the structure of the legislation.

4.4.

STRUCTURE DIFFERENCES IN ENFORCEMENT BODIES AND LEGISLATION

One of the arguments in favour of establishing an integrated equality body and legislation is that this would enable multidimensional cases to be dealt with. Not only has this been emphasised in policy studies and legal literature, also the political discourse in the countries examined has endorsed this notion. Since the integrated authorities in Sweden and Denmark were only established in 2009, no multidimensional discrimination cases were assumed before this year. At the same time, the Netherlands and Norway were expected to have the most extensive experience with treating multidimensional cases given their earlier establishment of integrated enforcement bodies. The data indeed show that both countries dealt with multidimensional cases before 2009. As expected, no multidimensional cases were found in Denmark during this period. The single equality bodies were responsible for single discrimination grounds and did not have the competence to consider other grounds of discrimination. However, although the same situation was expected in Sweden, a total of six multidimensional discrimination cases were found that were treated by three different equality bodies. Two of these cases were comparable and concerned older women not of Swedish ethnic descent (age, ethnicity and gender) who were not invited for a job interview. Interestingly, one case was brought before the Equal Opportunities Ombudsman (Sw-2008/2), while the other case was brought before the Ombudsman against Ethnic Discrimination (Sw-2007/2). These examples 70

428

See Goldberg (n 8).

Intersentia

Multidimensional Discrimination in Judicial Practice

show that the former Swedish equality bodies had the competence to deal with this kind of case, and they used it pragmatically. An integrated equality body may have advantages over separated equality bodies, but this result indicates that such a structure is not in itself a requirement for dealing with multidimensional cases. Since 2009, all four countries have an integrated enforcement body and in all countries multidimensional cases are registered. Thus, the equality bodies do not seem to suffer from a lack of awareness. However, it should be noted that only two cases were registered in Denmark. A reason for this may be that tackling multidimensional discrimination receives less attention in Denmark. Multidimensional discrimination was for example not a central issue during the political process of establishing an integrated enforcement body.71 With regard to the legislation, the structure varies from a separated structure in Norway, to semi-integrated in the Netherlands and Denmark, to an integrated one in Sweden. None of the countries have a specific provision concerning multidimensional discrimination. In both the Netherlands and Norway, it is argued by the legislator that it is not necessary to introduce such a provision because the equality body already recognizes and deals with discrimination cases on more than one ground. Although none of the countries had integrated legislation before 2009, the Netherlands, Norway and Sweden all dealt with multidimensional cases. The treatment of multidimensional discrimination cases does not seem to be hindered by either the separated structure of the legislation or the lack of a specific provision regulating multidimensional discrimination. However, based on the data, it remains unclear whether compartmentalisation has prevented certain cases from being brought forward. Reference to strategic choices in light of the legislation is only made in some of the Dutch cases concerning discrimination of employees working part time. Since the Equal Treatment Working Hours Act only covers discrimination with regard to working conditions, indirect gender discrimination is used as a ground in situations other than working conditions (for example, recruitment). Although an integrated enforcement body and legislation do not appear to be prerequisites for dealing with multidimensional cases, the differences in structure may lead to different approaches. The data show that the Netherlands and Denmark predominantly use a separated approach in the cases studied, while Sweden and Norway apply both separated and integrated approaches. While both the Netherlands and Denmark have semi-integrated legislation with regard to the labour market, this does not necessarily explain a separated approach. Moreover, while Norway has separated legislation and Sweden has integrated legislation, both countries apply integrated as well as separated approaches. Today, Sweden is the only country with both an integrated enforcement body and integrated legislation. Comparing the Swedish cases before and after 2009, no significant differences in treatment were noticeable. The forgoing implies that the experience of the enforcement body and 71

See Borchorst (n 57) at 8.

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the structure of the legal framework are of minor importance. It is conceivable that equality bodies choose a pragmatic approach, depending on the circumstances and on the comparators available. The study suggests that these countries do not have a problem in dealing with multidimensional discrimination cases, even if suitable comparators cannot be identified.

5.

CONCLUSION

The results of the study show the variety of the cases that were registered as multidimensional discrimination cases in the Netherlands, Norway, Sweden and Denmark. In the literature, the ‘no case’ problem has been mentioned as one of the causes for the underreporting of multidimensional discrimination. In this scenario, practitioners choose the strongest ground, thereby omitting other possible discriminatory grounds that may also be involved. Based on the data, the question in how many multidimensional cases only one ground was brought forward remains unanswered, since cases that were registered with more than one ground were specifically selected. To answer this question properly, another research design is needed, selecting single ground discrimination cases looking for multidimensional potential.  For further research, special emphasis could be on potential multidimensional cases where discrimination could not be proven based on the selected single ground. In the data, two of 74 cases were found in which a single ground approach was explicitly applied. In the other 72 cases, the equality bodies considered a minimum of two grounds in their decision. These findings imply that they are aware of multidimensional discrimination and are able to deal with these kinds of cases. Contrary to the expectations, the findings indicate that multidimensional discrimination may be recognized by both integrated and segregated equality bodies. In Denmark, an integrated equality body may have been necessary to treat multidimensional cases, since no multidimensional cases were found before the establishment of the Board of Equal Treatment in 2009. However, the Swedish practice shows that even though the equality bodies were separated before 2009, they did deal with cases on more than one discrimination ground. Moreover, none of the countries indicated that separated legislation or a lack of a specific provision hinder equality bodies in dealing with multidimensional cases. What seems to be a more important factor is enforcement bodies’ competence to comprehensively apply discrimination legislation. Thus, the data indicate that neither integrated equality bodies nor anti-discrimination legislation is a prerequisite in order to protect against multidimensional discrimination. The Netherlands and Norway have the longest tradition when it comes to an integrated equality body. However, this does not result in a comparable treatment of cases. With regard to the comparator approach, what seems more decisive is whether

430

Intersentia

Multidimensional Discrimination in Judicial Practice

the case concerns additive or intersectional discrimination. While a separated approach might be suitable for additive discrimination cases, an integrated approach appears to be more adequate when dealing with intersectional cases. Whether or not and what kind of comparator is appointed probably depends on pragmatic reasons. No cases were found that could not be decided because of the lack of a comparator. Rather, the equality bodies involved in this research choose to decide the case without appointing a specific comparator. In line with Goldberg, the four countries examined seem to have ‘dethroned’ the comparator and chosen a ‘conceptual approach’ when necessary. In conclusion, the findings indicate that multidimensional discrimination may be adequately dealt with in the judicial practices of the Netherlands, Norway, Sweden and Denmark. Treatment of multidimensional discrimination cases does not seem to be hindered by the structure of equality bodies or legislation or by the lack of specific provisions regulating multidimensional discrimination or the availability of a suitable comparator.

TABLE OF CASES De-2009 De-2010 Nl-2007/1 Nl-2007/2 Nl-2007/3 NL-2007/4 Nl-2007/5 Nl-2007/6 Nl-2007/7 Nl-2007/8 Nl-2007/9 Nl-2007/10 Nl-2007/11 Nl-2007/12 Nl-2008/1 Nl-2008/2 Nl-2008/3 Nl-2008/4 Nl-2008/5 Nl-2008/6 Nl-2008/7 Nl-2008/8 Nl-2008/9

Ligebehandlingsnaevnet 22 September 2010, nr. 81/2010 Ligebehandlingsnaevnet 4 February 2010, nr. 16/2011 CRM 15 May 2007, oordeel 2007–81 CRM 20 August 2007, oordeel 2007–154 CRM 10 July 2007, oordeel 2007–127 CRM 30 November 2007, oordeel 2007–206 CRM 6 November 2007, oordeel 2007–194 CRM 29 November 2007, oordeel 2007–207 CRM 26 March 2008, oordeel 2008–31 CRM 18 December 2007, oordeel 2007–220 CRM 8 May 2008, oordeel 2008–48 CRM 3 June 2008, oordeel 2008–59 CRM 6 May 2008, oordeel 2008–47 CRM 20 July 2009, oordeel 2009–67 CRM 24 July 2008, oordeel 2008–99 CRM 7 October 2008, oordeel 2008–118 CRM 27 August 2009, oordeel 2009–86 CRM 28 November 2008, oordeel 2008–142 CRM 2 October 2008, oordeel 2008–117 CRM 9 December 2008, oordeel 2008–148 CRM 9 December 2008, oordeel 2008–149 CRM 11 June 2010, oordeel 2010–88 CRM 4 March 2009, oordeel 2009–12

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Nl-2008/10 Nl-2008/11 Nl-2008/12 Nl-2008/13 Nl-2009/1 Nl-2009/2 Nl-2009/3 Nl-2009/4 Nl-2009/5 Nl-2009/6 Nl-2009/7 Nl-2010/1 Nl-2010/2 No-2007/1 No-2007/3 No-2007/4 No-2007/5 No-2007/6 No-2008/1 No-2008/2 No-2008/3 No-2008/4 No-2008/5 No-2008/6 No-2009/1 No-2009/2 No-2009/3 No-2009/4 No-2009/5 No-2009/6 No-2009/7 No-2010/1 No-2010/2 No-2010/3 No-2010/4 No-2010/5 No-2010/6 No-2010/7 No-2010/8 No-2010/9 Sw-2007/1 Sw-2007/2

432

CRM 28 May 2009, oordeel 2009–44 CRM 18 December 2008, oordeel 2008–155 CRM 20 October 2009, oordeel 2009–96 CRM 12 February 2009, oordeel 2009–7 CRM 13 July 2010, oordeel 2010–108 CRM 17 September 2009, oordeel 2009–90 CRM 5 November 2009, oordeel 2009–103 CRM 1 July 2010, oordeel 2010–98 CRM 30 December 2009, oordeel 2009–128 CRM 23 March 2010, oordeel 2010–48 CRM 19 October 2010, oordeel 2010–151 CRM 27 July 2010, oordeel 2010–116 CRM 5 November 2010, oordeel 2010–161 LDO 3 July 2007, LDO-07/111 LDO 12 June 2007, LDO-07/627 LDO 21 May 2007, LDO-07/874 LDO 3 September 2007, LDO-07/1283 LDO 15 October 2007, LDO-07/1698 LDO 26 November 2009, LDO-08/376 LDO 25 November 2008, LDO-08/812 LDO 30 May 2008, LDO-08/889 LDO 10 July 2008, LDO-08/1017 LDO 18 September 2008, LDO-08/1351 LDO 18 January 2010, LDO-08/1528 LDO 27 February 2009, LDO-09/472 LDO 9 March 2009, LDO-09/581 LDO 9 March 2010, LDO-09/1017 LDO 18 May 2009, LDO-09/1104 LDO 9 June 2009, LDO-09/1233 LDO 12 February 2010, LDO-09/1733 LDO 3 September 2009, LDO-09/1805 LDO 10 February 2010, LDO-10/? LDO 2 February 2010, LDO-10/260 LDO 18 February 2010, LDO-10/311 LDO 25 March 2010, LDO-10/481 LDO 4 August 2010, LDO-10/624 LDO 28 June 2010, LDO-10/1145 LDO 28 June 2010, LDO-10/1146 LDO 19 July 2010, LDO-10/1295 LDO 4 January 2011, LDO-10/2123 AD-Dom 28 January 2009, Jämo 2007/756 AD-Dom 21 January 2009, Omed 2007/816

Intersentia

Multidimensional Discrimination in Judicial Practice

Sw-2008/1 Sw-2008/2 Sw-2008/3 Sw-2008/4 Sw-2009/1 Sw-2009/2 Sw-2009/3 Sw-2009/4 Sw-2010

AD-Dom 24 March 2010, Omed 2008/176 Do 16 December 2009, Jämo 2008/880 Do 2 July 2009, Ho 2008/1384 Do 17 April 2009, Jämo 2008/777 AD-Dom 16 February 2011, ANM 2009/2143, ANM 2009/2247 AD-Dom 19 January 2011, ANM 2009/1140 AD-Dom 15 December, ANM 2009/825 Do 7 July 2010, ANM 2009/1300 AD-Dom 30 March 2011, ANM 2010/1102

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