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Comparison in Intersectional Discrimination

Research output: Contribution to journalArticle

Original languageEnglish
Pages (from-to)379-395
Number of pages17
JournalLegal Studies
Volume38
Issue number3
Early online date2 Jul 2018
DOIs
DateAccepted/In press - 6 Aug 2017
DateE-pub ahead of print - 2 Jul 2018
DatePublished (current) - 1 Sep 2018

Abstract

This article considers the use of comparison in establishing multi-ground claims of intersectional discrimination. Leading examples of test cases from the US and the UK exemplify the challenges in using comparison to establish discrimination against Black women, based on the grounds of both race and sex. These challenges include—the insistence on using a single mirror comparator (viz. white men) or the difficulties in choosing multiple comparators from a range of options (viz. white women, Asian women, Black men, white men etc), the missing rationale for the selection, and the unwieldiness in actually appreciating the nature of intersectional discrimination based on this exercise. To overcome these, Canadian courts have relaxed the strict requirement of necessarily resorting to comparison for proving discrimination and switched to the flexible approach. However, in practice, flexible approach appears as fastidious as strict comparison in its selection and use of comparators. Thus, neither of the two approaches has been too helpful in supporting intersectional claims. The article argues that instead, a useful way of proving intersectional discrimination is to follow the South African approach of making comparisons contextually: (i) between all relevant comparators, identified in reference to one, some, and all of the grounds or personal characteristics; and (ii) sifting through comparative evidence with the purpose of establishing similar and different patterns of group disadvantage which characterise the nature of intersectional discrimination. This approach brings both principle and purpose to employing comparison and can be especially useful in appreciating intersectional discrimination as based on multiple grounds.

    Research areas

  • Intersectional Discrimination, Comparison , Grounds

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Documents

  • Full-text PDF (accepted author manuscript)

    Rights statement: This is the author accepted manuscript (AAM). The final published version (version of record) is available online via Cambridge University Press at https://www.cambridge.org/core/journals/legal-studies/article/comparison-in-intersectional-discrimination/27FDAA9DCEEF94365FD995DDDBC5628C . Please refer to any applicable terms of use of the publisher.

    Accepted author manuscript, 621 KB, PDF document

    Embargo ends: 2/07/20

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    Licence: CC BY-NC

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