Ireland's Multiple Ground Anti-Discrimination Framework — Extending the Limitations?
| Date | 01 December 2005 |
| Author | Olivia Smith |
| DOI | 10.1177/135822910500800202 |
| Published date | 01 December 2005 |
International Journal
of
Discrimination and the Law, 2005, Vol.
8,
pp. 7-31
1358-2291/2005 $10
© 2005 A B Academic Publishers. Printed in Great Britain
IRELAND'S MULTIPLE GROUND ANTI-DISCRIMINATION
FRAMEWORK-
EXTENDING THE LIMITATIONS?
OLIVIA SMITH*
University
of
Liverpool, UK
ABSTRACT
Against the
backdrop
of
the
more
recent similar expansion
of
the anti-discrimination
framework
at
EU
level, this article reviews the operation
of
the last
five
years
of
Ireland's expanded anti-discrimination framework which
brought
an
extension
of
the discriminatory grounds from two
to
a total
of
nine.
In
particular,
it
raises
questions as
to
the claimed effectiveness
of
the
EU
framework from the perspective
of
those, particularly women, who identify across multiple grounds. This is evidenced
through
a review
of
some
of
the conceptual
and
practical problems
that
inhere in
an
anti-discrimination structure
that
is predicated
upon
a strict categorical-comparator
approach
to
identity
and
disadvantage.
In
particular, the way in which women with
compound
identities experience intersectional discrimination remains unaddressed
by
dominant
conceptions
of
single category definitions
of
direct
and
indirect discri-
mination. Yet the acknowledged reality
of
women as victims
of
multiple discrimina-
tion appears
to
be outwith the structures
of
the newly expanded legislation. Thus, far
from being
an
effective basis for addressing multiple discrimination, the Irish experi-
ence demonstrates again,
that
at
the level
of
individual enforcement, the well-worn
criticisms
of
the anti-discrimination framework remain firmly embedded in the
expanded regulations.
INTRODUCTION
The
European
Commission
recently
proclaimed
that
Article
13
is a
'quantum
leap
forward
in
the
fight
against
discrimination
at
the
EU
level'
and
that
it
provides
'a
more
effective basis
for
addressing
situa-
tions
of
multiple
discrimination.'
1
The
legal
measures
through
which
these
proclamations
have
been
effected
are
the
Race
and
Framework
Directives2
which
certain
Member
States
are
still struggling
to
trans-
pose.3
More
critically,
any
assessment
of
such
instruments
'prompts
the
question
whether
the
Commission's
use
of
Article
13
has
actually
achieved these
goals'
(Waddington,
2004).
For
example,
note
the
brief
mention
of
the
reality
that
'women
are
often
the
victims
of
multiple
discrimination'
in
recital 3
to
the
Framework
Directive (Council
Directive 2000/78/EC),
yet
no
express
mechanism
appears
to
address
and
remedy
this reality.
Therefore,
implicit
in
the
Commission's
8
statement
is a
particular
and
limiting view
of
how
multiple
discrimina-
tion
manifests itself
and
is
consequently
tackled
under
non-discrimina-
tion
legal precepts.
In
this article, a less
certain
and
more
problematic
experience
with
remedying
multiple
discrimination
is exposed, follow-
ing
an
assessment
of
Ireland's
broad-based
equality
legislation.
This
multiple
ground
framework
has
been
in
operation
prior
to,
and
origin-
ally
independent
of,
the
Article
13
legislative initiatives.4
The
enquiry
raises pressing
questions
as
to
the
European
legislative
programme's
'effective' tackling
of
multiple
forms
of
discrimination.
After
a difficult
and
protracted
birth,
5
Ireland's
multiple
ground
equality
legislation
-
the
Employment
Equality
Act
(hereafter
the
EEA)
and
the
Equal
Status
Act
(hereafter
the
ESA)
6 finally
came
on
stream
in
1998
and
2000 respectively.
Their
introduction
was
against
a
background
of
unprecedented
developments
in
Ireland's
social
and
economic
history.
Since
the
early
to
mid
1990s
Ireland
has
experienced
an
historical
transition,
described
as
a
'transfor-
mation
of
uncertainty'
(Daly,
2003).
Unprecedented
economic
growth
has
completely
altered
the
trend
of
emigration
from
Ireland;
the
State
reached
its
migration
turning
point
and
became
a
country
of
immigration
in
1996.
One
response
to
the
changing
demographics
and
dynamics
within
Irish
society
was
a
commitment
in
the
now
established
form
of
governance
-
the
social
partnership
6A -
to
tackle
the
concomitant
growth
of
inequality
and
social
exclusion
by
expanding
the
state's
anti-discrimination
legislative
programme.
7
The
development
was
effected
in
two
ways: first,
by
extending
the
discriminatory
grounds
in
the
employment
sphere
from
two
-
gender
and
marital
status
-
to
nine
-
gender,
marital
status,
race,
religion, age, disability,
sexual
orientation,
family
status,
and
membership
of
the
Traveller
community.
Second,
the
application
of
non-discrimination
provisions
on
the
same
nine
grounds
was
extended
beyond
employment
to
access
to
goods
and
services
in
the
ESA.
This
article
reports
on
how
the
interpretation
and
application
of
the
'nine
grounds'
has
panned
out
at
the
level
of
case-law
strategies;
in
particular,
whether
the
operation
of
the
statutory
framework
has
recognised
the
diversity
and
multiplicity
of
women's
experiences
of
discrimination.
To
this
end,
this
article
has
carried
out
an
audit
of
discrimination
cases
taken
since
the
introduction
of
the
EEA
and
the
ESA.
8
Most
of
the
scholarly
literature
addressing
the
issue
of
multiple
discrimination
and
the
intersection
of
discrimination
categories
focuses
on
the
experience
of
women.
9
This
trend
is
continued
here
for
the
simple
reality
that
the
greater
number
of
possible
claimants
under
compound
or
multiple
identity
discrimina-
tion
claims
would
be
women.
Case-law
statistics
support
this
proposition.
10
To continue reading
Request your trial