Intersectional discrimination in EU gender equality and non-discrimination law

It is increasingly recognised that discrimination can occur on the basis of more than one ground. A person who is discriminated against on grounds of her race might also suffer discrimination on grounds of her gender, her sexual orientation, her religion or belief, her age or her disability. Such discrimination can create cumulative disadvantage. Thus ethnic minority women, older women, black women and disabled women are among the most disadvantaged groups in many EU Member States. Similar cumulative disadvantage is experienced by gay or lesbian members of ethnic minorities; disabled black people; younger ethnic minority members or older disabled people. The report begins by briefly defining its terms and setting out the problems the concept of intersectionality aims to address. There are several different ways of conceptualising discrimination when it occurs on more than one ground. Terms such as ‘multiple discrimination,’ ‘cumulative discrimination,’ ‘compound discrimination,’ ‘combined discrimination’ and ‘intersectional discrimination’ are often used interchangeably although they might have subtly different meanings. There is no single settled terminology, either within legal systems or in the literature. Generally, however, there are three main ways in which such discrimination may manifest itself. The first is when a person suffers discrimination on different grounds on separate occasions. For the purposes of this report, this type of discrimination will be called ‘sequential multiple discrimination.’ A second manifestation occurs when a person is discriminated against on the same occasion but in two different ways. For example, a gay woman might claim that she has been subject to harassment both because she is a woman and because she is gay. Such discrimination can be said to be ‘additive’, in that each type of discrimination can be proved independently. For the purposes of this report, this type of discrimination will be called ‘additive multiple discrimination.’ The third manifestation is, however, of a different order in that discrimination does not simply consist in the addition of two sources of discrimination; the result is qualitatively different, or, as Crenshaw terms it, ‘synergistic.’1 For example, black women may experience discrimination in a way which is qualitatively different from either white women or black men. Black women share some experiences in common with both white women and black men, but they also differ in important respects. Thus while white women may be the victims of sex discrimination, they may also be the beneficiaries and even the perpetrators of racism. Conversely, black men may experience racism but be the beneficiaries and perpetrators of sexism. It is this type of discrimination which is the subject of this thematic report. It is usually referred to as ‘intersectional discrimination’ and it is this terminology which will be used in this report