Intersectional discrimination and EU law: Time to revisit Parris
| Published date | 01 December 2024 |
| DOI | http://doi.org/10.1177/13582291241285336 |
| Author | Erica Howard |
| Date | 01 December 2024 |
Article
International Journal of
Discrimination and the Law
2024, Vol. 24(4) 292–312
© The Author(s) 2024
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DOI: 10.1177/13582291241285336
journals.sagepub.com/home/jdi
Intersectional discrimination
and EU law: Time to revisit
Parris
Erica Howard
Abstract
In this article it is argued that the CJEU judgment in Parris needs to be revisited to
recognise that intersectional discrimination is covered by the EU anti-discrimination
Directives. There are several reasons for this. First, a prohibition of intersectional
discrimination is now laid down in an EU anti-discrimination Directive (Directive, 2023/
970/EC); second, this would fit in with developments in the EU Commission, Council and
Parliament; third Parris turns on its own facts; fourth a purposive or capacious inter-
pretation of these Directives already allows for such discrimination to be included in the
Directives; fifth, the shift in CJEU case law towards a intra-group comparison for dis-
crimination can make comparisons in intersectional discrimination cases easier. It is
argued that without acknowledging that intersectional discrimination is covered by the
EU anti-discrimination Directives, victims of such discrimination, like Mr Parris and
others, like headscarf wearing women, might be left without a remedy when they suffer
discrimination on a combination of grounds.
Keywords
Intersectional discrimination, multiple discrimination, EU anti-discrimination directives,
parris case, purposive interpretation, headscarves
Introduction
Multiple or intersectional discrimination, where discrimination takes place on more than
one protected ground, has returned to the European Union (EU) agenda in recent years. In
School of Law and Social Sciences, Middlesex University, London, UK
Corresponding author:
Erica Howard, School of Law and Social Sciences, Middlesex University, The Burroughs, London NW4 4BT,
UK.
Email: e.howard@mdx.ac.uk
2000, the EU adopted two Directives against discrimination: Directive 2000/43/EC,
prohibiting racial and ethnic origin discrimination in the areas of employment and oc-
cupation, social protection, social advantages, education, and access to and supply of
goods and services which are available to the public; and, Directive 2000/78/EC, pro-
hibiting discrimination on the grounds of disability, religion or belief, age and sexual
orientation in employment and occupation. Both these Directives mention in their
preambles that women are often the victims of multiple discrimination (Directive, 2000/
43/EC, Recital 14; Directive, 2000/78/EC, Recital 3) Commission Communications
mentioned multiple discrimination in 2008 (COM (2008a) 420, 3.2) and in 2014 (COM
(2014) 2, 4.4). A 2017 EU Council decision on COM (2008b) 426, also mentions that
discrimination includes multiple discrimination and direct and indirect discrimination on
one or more/multiple grounds (Council 2017, 12 and Article 2(a) and (b)). All these
documents mention ‘multiple’rather than ‘intersectional’discrimination, although the
Council decision mentions that ‘discrimination on the basis of religion or belief, disability,
age or sexual orientation may be compounded by or intersect with discrimination on
grounds of sex or gender identity, racial or ethnic origin, and nationality’(EU Council,
2017, 12ab). The latter shows an awareness of intersectional discrimination, where two or
more grounds are clearly linked and intersect with each other as will become clear below.
Since then, the term ‘intersectional discrimination’has become more prominent at EU
level. For example, in the EU Gender Equality Strategy 2020-2025, the European
Commission states that ‘the strategy will be implemented using intersectionality …–the
combination of gender with other personal characteristics or identities, and how these
intersections contribute to unique experiences of discrimination –as a cross-cutting
principle’; and, that ‘the intersectionality of gender with other grounds of discrimination
will be addressed across EU policies’(COM (2020) 152). And, in a 2021 Motion, the
European Parliament expresses that women face intersecting inequalities and discrimi-
nation (European Parliament Motion, 2021). Most importantly, intersectional discrimi-
nation has now been explicitly included as a form of discrimination in Directive 2023/
970/EC, the Pay Transparency Directive. This suggests the development of more attention
to the issue of intersectional discrimination at EU level since about 2017.
However, in its 2016 judgment in Parris v Trinity College Dublin, the Court of Justice
of the EU (CJEU) did not follow the Opinion of its Advocate General and seems to have
rejected an intersectional claim, a claim on a combination of discrimination grounds if no
discrimination on either ground can be found (Case C-443/15, para. 80). As will become
clear, the CJEU, in Parris, was criticised for this and it was argued that the case stands on
its own facts. In light of the renewed attention given to intersectional discrimination in all
EU institutions and the explicit mention of this in the 2023 Directive, it will be argued that
it is time to revisit the judgment in Parris and to recognise that EU anti-discrimination law
covers intersectional discrimination.
This article starts with a discussion of the terms ‘multiple discrimination’and ‘in-
tersectional discrimination,’and this is followed by an analysis of the Parris case, in-
cluding the Opinion of Advocate General Kokott in this case. The criticism raised against
Parris and the reasons it was argued why this case stands on its own facts as well as
developments in the case law of the CJEU will then be examined in order to argue that the
Howard 293
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