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Uses and misuses of intersectionality before the European Court of Justice

Uses and misuses of intersectionality before the European Court of Justice

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Uses and misuses of intersectionality before the European Court of Justice

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  1. Uses and misuses of intersectionality before the European Court of Justice Equinet 2016

  2. A disjointed field? Equal Treatment “Race “ Dir 2000/43: Employment, social security, social advan-tages, health, education, goods & services sex/ gender “Article 19 grounds” “Umbrella Directive” 2000/78 on religion & belief, age, disability, sexual orientation: employment & occupation Goods & Servic-es(NOT educa-tion and health) Dir2004/113 Self employed (2010 new,) Employment Dir2006/54 Equal Pay Article 157 TFEU+ Dir Social Secu-rity Gender Dir 79/7 Planned: expand scope of “Umbrella Directive” to correspond to Dir 2000/43

  3. Policy development & NGO support European anti-racism movement Gender Experts disjointed • Bottom up origins in many MS (East?) • Institutional feminism influential (& funded) in EU – in the past • Divided between “gender first” activists and supporters of intersectionality • Diverse national roots • “Starting line” (UK/Benelux), strategic inclusion of sexualities, age, religion and belief • COM funding for this combination from 2003 • Supportive of intersectionality in parts Disability lobby • Bottom up origins in many MS, EU dimension from 1980s • COM funding e.g. for ANED from 1990s • Strengthened by EU accession to UN CPRD • Supports intersectionality

  4. Positive EU law supports intersectionality • Directives 2000/43 and 2000/78 • “women are often the victims of multiple discrimination” • Recital 14 Dir 2000/43, Recital 8 Dir 2000/78/EC • Commission to report on multiple discrimination and gender mainstreaming • Article 17 and 19 respectively • “gender” Directives: • No reference to multiple discrimination • While there is no positive definition of intersectional or multiple discrimination, EU law can be interpreted as corresponding to intersectional inequalities

  5. Why should we use it? Recognising all dimensions of discrimination Apply discrimination law to mono-intersectional cases Avoid wide exceptions by cumulating claims Award higher damages/stricter remedies

  6. Precondition: awareness for power imbalances • Advantage • Men • Whites • Majority religion/ethnicity • Best years of life • Heterosexual • Perceived as able(bodied) • Disadvantage • Women • Men (and women) disturbing gender expectation • “BME” • Muslims • Too old or young • Non majoritan life style • disabled

  7. Enigma before the Court • First case to discuss intersectionality • White old man – homosexuality, marriage pension • Parris C443/15, AG Kokott promotes intersectionality • Court rejects discrimination claim • Two “head scarf cases” : Ags do not touch upon intersectionality • Achbita C-157/15, AG Kokott tends to justify head scarf ban • Bougnaoui C-188/15 AG Sharpstone tends to consider this discrimination

  8. Parris Occupational pension scheme only provides for survivor‘s benefit if partner married / became civil partner before 60th birthday As Ireland only introduced homosexual civil partnership in 2011, there is a whole generation of homosexual lecturers who are unable to pass on survivor pensions

  9. AG Kokott • Discrimination on grounds of homosexuality? • Indirect • Legitimate aim (avoid abuse) • Disproportionate means • Age discrimination • Direct age discrimination • Not justified „several factor discrimination“ is in evidence here requires stricter standards for justification

  10. Court • No discrimination on grounds of homosexuality • Age discrimination is justified (Article 6 (2) Directive • No consideration of intersectionality!

  11. Achbita case – AG Kokott • Stresses throughout that the claimant is a Muslim woman • However, the ban on religious, political and philosophical signifiers is NOT direct discrimination on grounds of religion and belief • General policy, several „grounds“ • The indirect discrimination is justified (business interest, neutral clothing)

  12. Bougnaoui case – AG Sharpstone Individual demand to not wear headscarf when contacting customer is direct discrimination on grounds of religion In principle, this could be justified by reference to genuine business requirement In this specific case, the employer has not been convincing though

  13. Why use intersectionality?? • Parris case • Seems the only way to recognise the specific harm • Achbita / Bougnaoui case • Gender & ethnic dimension of cases springs in the face –the law to recognise this? • Justification of gender and ethnic discrimination more demanding • Acknowledging intersectionality might lead to higher damages

  14. Thankyouforyourattention ! d.schiek@qub.ac.uk