Intersectional Discrimination in EU Law - a critical reflection

This chapter introduces the concept of intersectionality in its relevance for anti-discrimination law. It illustrates the use (or non-use) of this concept by the Court of Justice, and provides examples of case law ignoring intersectional inequalities. Finally, it proposes to re-frame and re-focus EU anti-discrimination law around nodes of inequalities as a way to better address intersectional inequalities.

Pro-active protection against racialist discrimination in employment law - lessons from South Africa?

This study investigates the potential of the prohibition of indirect race discrimination to be used for law reform, and to uncover discriminatory practices. It reflects on the history and contents of the concept, and focuses in particular on its application in the Republic of South Africa

Merit, Speech Disability and Discrimination

There is a substantial body of evidence – going back over decades – which indicates that the employment sphere is difficult for those who suffer a speech disability. To a large extent, I argue, this is due to the setting of merit in terms of orality and aesthetic. It also relates to the low perception of competence of the speech disabled. I argue that to be effective against discrimination the notion of merit and its assessment requires focus. ‘Merit’ as a concept in discrimination law has had its critics, yet it remains important to investigate it as social construct in order to help understand discrimination and how to counter this. For example, in this article I look at an instance where the resetting of what was viewed as ‘meritorious’ in judicial recruitment successfully improved the diversity in lower judicial posts.

Further, given the relative failure of the employment tribunal system to improve the general position of those who are disabled, I look to alternative methods of countering disability discrimination. The suggestion provided is that an enforced ombudsman type approach capable of dealing with what may be the core issue around employment discrimination (‘merit’) would provide a better mechanism for handling the general situation of disability discrimination than the tribunal system.

European Union non-discrimination law and intersectionality:Investigating the triangle of racial, gender and disability discrimination

This book contributes to a critical reflection of current legislative and jurisprudential developments in Non-Discrimination Law, focusing on the European Union. The book is focused on intersectionality between gender, race and disability and the question of whether, and to what extent, this intersection can be adequately addressed in (EU) law. The discussion rests on two basic assumptions. First, the multiplication of 'discrimination grounds' in EU law and other legal regimes should not result in a dilution of the demands of equality law. Accordingly, the book focuses on the three key grounds - race, gender and disability. These constitute nodes around which other discrimination grounds can be grouped. Second, any multi-ground non-discrimination law framework needs to engage with the question of discrimination on several grounds. This book provides a critical evaluation of some of the problems presented by such intersectionality and an opportunity to explore the issues in depth. This collection offers some new proposals relating to the regrouping of identity categories and to the general approach to socio-legal research in the field. It also contains a comparative section, which expands on practical experiences with intersectionality and law, and a section dedicated to juridical responses to intersectionality.

Gendered Violence and International Human Rights: Thinking Non-Discrimination Beyond the Sex Binary

The concept of non-discrimination has been central in the feminist challenge to gendered violence within international human rights law. This article critically explores non-discrimination and the challenge it seeks to pose to gendered violence through the work of Judith Butler. Drawing upon Butler’s critique of heteronormative sex/gender, the article utilises an understanding of gendered violence as effected by the restrictive scripts of sex/gender within heteronormativity to illustrate how the development of non-discrimination within international human rights law renders it ineffective to challenge gendered violence due to its own commitments to binarised and asymmetrical sex/gender. However, the article also seeks to encourage a reworking of non-discrimination beyond the heteronormative sex binary through employing Butler’s concept of cultural translation. Analysis via the lens of cultural translation reveals the fluidity of non-discrimination as a universal concept and offers new possibilities for feminist engagement with universal human rights.

Intersectionality and the Notion of Disability in EU discrimination law

Defining the characteristics targeted by banning discrimination constitutes a central challenge for EU discrimination law, and defining disability is particular-ly challenging due to the dispute around the very concept of disability. From 2006, the Court of Justice has wrestled with this definition in six judgments, five of which were delivered from 2013. Instead of classifying the case law definition as conforming to a medical or social model of disability, this article analyses the case law with a view to illustrate challenges of defining discrimination grounds generally, demanding that a sufficiently precise and non-exclusive definition of each discrimination ground can be achieved by re-focusing EU discrimination law around the nodes of sex, race and disability. The analysis exposes that the ECJ definition of disability neither complies with the UN CRPD nor adequately responds to intersectionality theory, for example because the definition is exclu-sionary in relation to female experience of disability.

Revisiting intersectionality for EU Anti-Discrimination Law in an economic crisis –a critical legal studies perspective

This article discusses the role of EU anti-discrimination law in challenging EU anti-crisis measures from a critical legal studies perspective. Critical legal scholarship is defined through its challenge of ‘lex’ through the vision of ‘ius’ and its critical links with social movements. EU anti-discrimination law attracts critique for constituting a compartmentalised socio-legal field, which prevents justice for those at intersections of inequalities. By defining as the aim of anti-discrimination law the combat of disadvantage resulting from ascribed otherness around the nodes sex/gender, race/ethnicity, and disability, the article suggests a convincing normative vision suitable to de-compartmentalise the field and adequately address intersectionality. This critical legal perspective on intersectionality differs from its sociological counterparts by omitting class as a category. The article demonstrates that this distinction is necessary for EU anti-discrimination law to maintain its critical edge.