Disability Discrimination by Association: A Case of the Double Yes?
| DOI | 10.1177/0964663910391519 |
| Date | 01 June 2011 |
| Published date | 01 June 2011 |
| Subject Matter | Articles |
Article
Social & Legal Studies
20(2) 173–190
Disability Discrimination
ª The Author(s) 2011
Reprints and permission:
by Association: A Case
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DOI: 10.1177/0964663910391519
of the Double Yes?
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Ann Stewart
University of Warwick, UK
Silvia Niccolai
University of Cagliari, Italy
Catherine Hoskyns
Coventry University, UK
Abstract
In July 2008, the European Court of Justice (ECJ) ruled in Coleman v Attridge Law (Case
C-303/06) that the European prohibition of discrimination based on disabilities
(Directive 2000/78) applies when the direct victim of discrimination is a person
associated with the disabled person, such as a parent who is the primary carer for a
disabled child. This decision has major implications for the scope and application of
European anti-discrimination law, and in particular for the new anti-discrimination direc-
tives. Coleman raises questions relating to the complex relationship between paid work
and caring. While being a case relating to disability discrimination, it has been heralded as
a victory for carers. This article seeks to explain why and explore the extent to which
this ruling reconstructs the concept of the worker as a subject whose caring relation-
ships are recognized and valued. It begins by setting the judgment within the wider
debates relating to care and work before considering the significance of the ruling for
ECJ anti-discrimination jurisprudence. The article concludes with a discussion of the
implications of the ruling and its aftermath in the UK, particularly for contemporary fem-
inist analysis of the relationship between caring and paid work.
Keywords
disability by association, European anti-discrimination law, reconciliation, work/care
Corresponding author:
Ann Stewart, School of Law, University of Warwick, UK
Email: ann.stewart@warwick.ac.uk
174
Social & Legal Studies 20(2)
Introduction
In July 2008, the European Court of Justice (ECJ) ruled in Coleman v Attridge Law that
the European prohibition of discrimination based on disabilities (Directive 2000/78)
applies not only when the disabled person is the direct victim of discrimination, but also
when the direct victim of discrimination is a person associated with the disabled person,
such as a parent who is the primary carer for a disabled child. While being a case relating
to disability discrimination, it has been heralded as a victory for carers within the UK.1
This article explores the complex relationship between paid work and caring and the
extent to which the ruling reconstructs the concept of the worker as a subject whose car-
ing relationships are recognized and valued. It begins with a discussion of the structural
changes within European labour markets which have disrupted the ‘gender contract’
associated with the breadwinner/homemaker model and provoked legislative and policy
initiatives reconciling work with care responsibilities. Rather than ‘balancing’ work and
care, these measures prioritize work, reinforcing feminist analyses which point to the
undervaluation of social reproductive activities. The Italian feminist ‘Double Yes’
approach, which insists on equal priority for care and work is used to highlight this point.
The resonance of this approach is demonstrated through a discussion of the way in which
the ‘case’ emerged. Sharon Coleman’s desire to work and care for a disabled child
impressed her lawyer and arguably the Industrial Tribunal Chair at a political moment
in the UK when the ‘rights’ of carers were in need of a champion.
Discrimination by association provided the conceptual framework through which
the claim was pursued. The article outlines the tensions relating to work and care
within European anti-discrimination jurisprudence before discussing the approach
adopted in Coleman and the subsequent policy impact of the European decision in the
UK. In conclusion, we argue that while still rooted in the individualistic concept of dis-
crimination, the decision could have major implications for the scope and application
of European anti-discrimination law in that it provides the basis for a more relational
concept of rights.
Material and Analytical Background
The European labour market has been transformed over the past three decades by the
influx of women into the formal economy, albeit into predominantly casual, ‘flexible’
or alternatively ‘precarious’ work (Fudge and Owens, 2006). In the UK, for example,
since 1970, the overall male employment rate has dropped from 92 per cent to approx-
imately 79 per cent, whereas the rate for women has increased from 56 per cent to 70 per
cent. Women now constitute around 45 per cent of the economically active work force
(Moffat, 2007: 137). Many, however, are ‘part-time’ workers: the number of women
working full-time has remained relatively unchanged at 25 per cent approximately. This
has facilitated the globalization of production and created new economic and social rela-
tionships between the North and South. Women in the Global North have entered post-
industrial consumer economies based increasingly on the provision of services. These
economies have, it is argued, become far more ‘affective’, that is based upon the values
and relationships once associated with the socially reproductive sphere, manifested in
Stewart et al.
175
the provision of marketized care products and services offering ‘affects’ (Ertman and
Williams, 2005). More care is now provided through defamiliarized relationships and
undertaken by women workers, further complicating the nexus between care and work
and challenging legal constructions of worker and carer.
Feminist analysis has revealed the way in which the legal construction of the ‘proper’
worker has been modelled historically upon gendered divisions of labour. Unencum-
bered (male) workers who provide long uninterrupted hours consistently over a lifetime
have received the greatest protection and work-related entitlements as employees.
‘Other’ encumbered (female) workers unable to meet these requirements receive less
while those who have undertaken ‘housework’ and care, deemed to be in the invisible
private sphere, have been outside the realm of legal regulation. However, we have seen
two developments: the emergence of the ‘carer’ as a subject of public policy and of law;
and the trend towards replacing the breadwinner man and homemaker woman by the uni-
versal adult worker model. Carers are constructed as those who undertake, unpaid, more
than the ‘normal or usual reciprocity’ expected in a given relationship. They may also
undertake paid work but they are defined through their caring relationship (Cook,
2007), and within social welfare-based law. They are therefore distinguished from those
who provide commodified care – (paid) care workers – and from those workers who also
maintain caring relationships while undertaking paid work – caring workers – who are
defined through their labour market relationship.
Issues relating to care and carers are becoming more visible in public discourse,
including within European debates on ‘reconciliation’, and within the UK on discussions
relating to work/life or work/family balance (Lewis, 2009). They are becoming a more
likely subject for employment-related legal interventions (Fredman, 2008). Measures
that have been adopted such as improved maternity/paternity and parental leave, more
extensive socially provided childcare and (in the UK) the right to request flexible work-
ing arrangements for parents and for those with caring responsibilities, are employment
related, with the primary objective of ensuring that the maximum number of adults
engage in paid work. Provisions of this kind are being generalized throughout the EU
to the extent that the European Commission is now beginning to base its social welfare
policies and analysis, not on the breadwinner/homemaker model with its implicitly gen-
dered contract, but on the universal adult worker model which assumes gender equality
in employment (Lewis and Guillari, 2005).
While it is important to recognize that women’s involvement with the labour
market often offers a degree of social and economic independence, it is also necessary
to consider whether it has produced a net improvement in women’s overall well-
being. The movement of women into employment has not been accompanied by a sus-
tained discussion of how caring relationships are to be conducted in this new context,
given that caring is still ascribed primarily to women. Although there is a growing debate
over care ‘deficits’, unpaid care work, due to its association with women, has never been
valued at its true worth and because of familial provision has remained outside national
accounting and measurement of GDP (Hoskyns and Rai, 2007). As a result, policy dis-
cussions and consequently legal interventions have so far been largely ad hoc, coming
from an economic efficiency and cost-saving perspective and not from the perspective
of how to achieve a more equal and sustainable society (Carers UK, 2002).
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Social & Legal Studies 20(2)
The universal worker model ignores the fact that men and women are not equal in
employment and that the main responsibility for care is still being assumed by women.
Clearly the tranche of legislative and ‘third way’ policy initiatives (Conaghan, 2002)
which emerged in the UK after 1997 provided support for those with particular care
responsibilities, reconstructing certain workers as gender-neutral parents and carers.
However, arguably these measures have produced a new gendered hierarchy of (male)
...
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