‘Inequality in equality’ in the European Union equality directives
| Author | Päivi Johanna Neuvonen |
| DOI | 10.1177/1358229115591412 |
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| Subject Matter | Articles |
Article
‘Inequality in equality’
in the European Union
equality directives:
A friend or a foe of
more systematized
relationships between
the protected grounds?
Pa
¨ivi Johanna Neuvonen
Abstract
The multi-ground anti-discrimination regimes, such as the one adopted in the European
Union (EU) equality directives, have to reconcile the potentially conflicting aims of
‘integration’ and ‘diversity’ between the multiple protected grounds. A more systematic
account of how the different grounds of prohibited discrimination relate to one another
is needed to explain the differing scope of protection in relation to different grounds as
well as to solve potential conflicts between the protected grounds. This article first
briefly reiterates how the issue of ‘inequality in equality’ emerges from the EU equality
directives. It will then move on to examine how these so-called ‘equality hierarchies’ can
be understood in the light of the contemporary discrimination theory. From this the-
oretical analysis follows the argument that the relationships between different grounds
of prohibited discrimination are shaped by the complexity of social identities that
underlie the protected grounds. Any attempt to systematize the relationships between
the protected grounds therefore stands or falls depending on how well it succeeds in
taking into account this complexity. Finally, the article outlines how the idea of sub-
jectivity as ‘identity through agency’ can respond to the complexity of identity formation
Institute for Constitutional Law, KU Leuven, Leuven, Belgium
Corresponding author:
Pa
¨ivi Johanna Neuvonen, Institute for Constitutional Law, KU Leuven, Tiensestraat 41 box 3441,
3000 Leuven, Belgium.
Email: paivijohanna.neuvonen@law.kuleuven.be
International Journalof
Discrimination and theLaw
2015, Vol. 15(4) 222–240
ªThe Author(s) 2015
Reprints and permission:
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DOI: 10.1177/1358229115591412
jdi.sagepub.com
and provide a much-needed substantive standard for normative ordering between the
protected grounds in multidimensional anti-discrimination law.
Keywords
EU equality law, anti-discrimination law, discrimination theory, equality hierarchy,
protected grounds, categorization, subjectivity, identity conflict, agency
Introduction
The term ‘inequalityin equality’ refers to situations in which different grounds of prohib-
ited discrimination are treated differently in legislation and are thus placed into a norma-
tive hierarchy with one another. These so-called ‘equality hierarchies’ are problematized
in modern anti-discrimination law which promises to reconcile the increasing number of
protected grounds with the idea thatall grounds are equally valuableand worth protection.
At the same time, however, the diversityof legally recognized inequalities calls into ques-
tion the view that all grounds must be treated alike. Multi-ground anti-discrimination
regimes therefore leave us with the question of how different grounds of prohibited dis-
criminationrelate to one another both in practice and in theory.This quest for more coher-
ence within anti-discrimination legislation is of particular relevance to European Union
(EU) anti-discrimination law, where a series of new equality directives has advanced a
more integrated multi-ground approach to prohibited discrimination.
This article first outlines how the European anti-discrimination framework still falls
short of a consistent theoretical account of how different grounds of prohibited discrim-
ination relate to one another. This analysis highlights the need for further research on
how to reconcile the seemingly conflicting aims of ‘integration’ and ‘diversity’ within
multidimensional anti-discrimination regimes. In particular, it is important to consider
whether the goal of integration requires equality between the grounds, and if so, how this
aim can be reached whilst simultaneously maintaining the adequate diversity between
different grounds. The remaining sections of this article will engage in this task, first,
by clarifying the conceptual distinction between the harmful equality hierarchies and the
necessary ordering in multidimensional discrimination law and, then, by considering
what tools the contemporary discrimination theory can provide for normative ordering
in this context.
This insight into critical discrimination theory results in the argument that the com-
plexity of conflicting social identities must play a central role in systematizing the rela-
tionships between the protected grounds and that more substantive normative principles
are needed to accommodate this complexity into discrimination law. The final section of
this article will articulate one such principle by discussing how the constitution of sub-
jectivity as a dynamic and relational process can provide a substantive standard for asses-
sing the potential clashes between different grounds of discrimination and for deciding
when differential treatment can be justified between the protected grounds better than the
notions of identity, disadvantage or agency alone would do.
Neuvonen 223
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