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Farrer & Co | Intersectionality: what is it and why does it matter for employers?

When Dawn Butler, the third Black women elected to the UK parliament, entered a members-only lift in Westminster, a fellow male MP turned to her and remarked: ‘this lift really isn’t for cleaners’.

Was the demeaning comment made because Butler is a woman, because she is Black, or could it be a combination of both? And in this instance, should she be forced to select which single characteristic acted as the trigger?

Now Labour’s Shadow Minister for Women and Equalities, Butler is lobbying for the right to bring forward cases on multiple grounds of discrimination. She argues that it is time the law recognises and provides for so-called ‘intersectionality’ (also, and perhaps more commonly, known as dual or combined discrimination).

The term ‘intersectionality’ was coined by legal scholar Kimberlé Crenshaw to express the multiple threats of discrimination which might occur when an individual’s identities overlap. Crenshaw uses the analogy of a traffic intersection to explain the concept: "If an accident happens in an intersection, it can be caused by cars traveling from any number of directions and, sometimes, from all of them," she wrote. "Similarly, if a Black woman is harmed because she is in an intersection, her injury could result from sex discrimination or race discrimination."

If identities are a fusion of different characteristics, how, then, can particular combinations of prejudice be isolated into separate legal cases? And if discrimination cannot be neatly subcategorised, the way it is safeguarded against should not be either.

The law as it stands 

The ‘protected characteristics’ under the Equality Act 2010 are age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Section 14 contains a provision to cover direct discrimination on up to two combined grounds – known as combined or dual discrimination. However, this section has never been brought into effect as the government deemed it too ‘complicated and burdensome’ for businesses.

There are now calls on the government to enact section 14 so that individuals can bring forward cases on multiple grounds of discrimination. However, even if section 14 is implemented, its scope remains limited; it applies only to twogrounds of direct discrimination. First, the notion of dual discrimination has been criticised for artificially limiting the number of characteristics which interact in incidents of discrimination. Second, by providing only for ‘direct’ discrimination, section 14 does not cover harassment or forms of indirect discrimination.

Interestingly, some judges are starting to shift to a broader approach when considering claims where several characteristics are at play and, in doing so, appear to be acknowledging that intersectional cases simply cannot be reconceptualised to fit into the current rigid legal framework. This was evident in O’Reilly v BBC (2010). In this case, former Countryfile presenter, Miriam O’Reilly, claimed for age and sex discrimination against the BBC after she was removed from the programme. The tribunal considered the possibility of combined age and sex discrimination. By doing so, it was effectively concluded that a claim for combined discrimination could be possible, despite section 14 not being in force.

Inequality in the workplace is attracting unprecedented levels of media exposure and attitudes towards such circumstances are rapidly shifting. It is therefore vital that employers are forward-thinking, and that their internal policies reflect this progression.

What employers can do

Gender pay gap reporting (for more on which, see Sophia Coles’ blog) typically takes the flat format of comparing all the women in an organisation to all the men in that same organisation. However, when other factors such as race, religion and sexuality are considered, it becomes clear that looking at women as a homogenous group fails to tell the whole story. The pay gap, for example, is significantly higher for women from ethnic minorities than for women from a white background.

Artificially deconstructing personal identities into neat boxes can lead to poorly executed diversity initiatives. For example, Harvard University implemented a scheme aimed at recruiting more women and ethnic minorities. They set up two committees - a gender committee and a race committee; each recruited exclusively from those groups. The outcome of this categorisation was that women of colour were not recruited into either of these subsets. Treating each group as distinct and homogenous failed to create a more inclusive environment and proved counterproductive.

Employers who are committed to equality of opportunity are well advised to prioritise intersectionality within their diversity initiatives and look at discrimination within their organisations through a more holistic lens. By doing so, intersectional discrimination can be recognised earlier in potential grievance processes and investigations can be more effective, hopefully reducing the risk of litigation. 

Comparison within groups, as well as between groups, is an important step towards an inclusive work environment.

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