Processing discrimination cases in post-socialist countries: Multiple and intersectional discrimination through the eyes of legal practitioners in Croatia, Macedonia and Slovenia
| Author | Biljana Kotevska |
| DOI | http://doi.org/10.1177/13582291221123753 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2022, Vol. 22(4) 386–403
© The Author(s) 2022
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DOI: 10.1177/13582291221123753
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Processing discrimination cases
in post-socialist countries:
Multiple and intersectional
discrimination through the eyes
of legal practitioners in Croatia,
Macedonia and Slovenia
Biljana Kotevska
Abstract
This article focuses on how discrimination cases in general, and multiple and intersec-
tional discrimination cases in specific, are approached by legal practitioners in civil law
countries, focusing on three post-socialist countries––Croatia, Macedonia and Slovenia.
The article presents empirical findings from semi-structured interviews showing how
legal practitioners approach three equality law institutions: shifting of the burden of proof,
comparator and contextualisation. The research findings suggest that challenges for
multiple and intersectional discrimination claims persist despite the generally well de-
veloped legal framework. There is a general reluctance to accept the shifting of the burden
of proof, and there is no established understanding or practice of when the burden is
shifted, which hints to a nonunified practice. There is an insistence on a comparator,
which burdens intersectional discrimination claims. There is a general disregard of the
synergistic effects arising in intersectional discrimination cases and a tendency for dis-
jointing intersectional claims. Thus, while the letter of the law may not be an obstacle for
multiple and intersectional claims to be fully heard and properly addressed, the legal
practice is.
Keywords
comparator, contextualisation, Croatia, intersectional discrimination, Macedonia, shifting
of the burden of proof, Slovenia
European Policy Institute Skopje, Skopje, Macedonia
Corresponding author:
Biljana Kotevska, European Policy Institute Skopje, Antonie Grubisic 2/2, Skopje 1000, Macedonia.
Email: kotevska.biljana@gmail.com
Introduction
In the fast-developing scholarship on equality and non-discrimination law, research on
and from common law jurisdictions continues to dominate compared to civil law ones.
This is even more so the case for the post-socialist countries,
1
a subset of the civil law
ones, where research focusing on equality and non-discrimination law, especially in the
English language, is of a more recent date
2
and was significantly advanced by the
pioneering works of Barbara Havelkov´
a (2017) and Goran Selanec (2012), and a more
recent volume edited by Barbara Havelkov´
a and Mathias M¨
oschel (2020). Havelkov´
a and
Selanec both focused on gender and women’s equality in post-socialist countries, leaving
multiple and intersectional discrimination as a still largely uncharted territory.
3
The edited
volume by Havelkov´
a and M¨
oschel does take, in their own words, a “multi-ground
approach”(2020) but no contribution discusses multiple and intersectional discrimination
specifically. Workson multiple and intersectional discrimination are mainly
4
on common
law jurisdictions,
5
rarely on post-socialist ones
6
and they do not discuss the work of legal
practitioners from a socio-legal perspective. How legal practitioners actually think about
and how they use key equality law institutions when working with multiple and inter-
sectional discrimination cases remains largely undiscussed.
This is where this article comes in. It offers a rare insight into the minds and work of
legal practitioners dealing with discrimination cases. It is a socio-legal account on the
conceptualisation and the use of shifting of the burden of proof, comparator, and con-
textualisation focused on multiple and intersectional discrimination claims. It looks at
three post-socialist and post-Yugoslav countries –– Croatia, Macedonia,
7
and Slovenia.
The article argues that the laws in these countries regarding the three institutions are
conducive for multiple and intersectional discrimination claims, but that the ways in
which these rules are applied results in multiple challenges for these claims, uncovering
an elusive role for the shifting of the burden of proof, diversity of positions on the use of a
comparator, and an ambivalence towards contextualisation.
The findings presented herein on the three procedural aspects were produced within the
frame of a larger research project “Intersectionality in the Post-Yugoslav Space”which
looked at how legal and policy practitioners conceptualise and deal with intersectional
discrimination. This research project was the author’s doctoral research at Queen’s
University Belfast (United Kingdom) and this article is based on parts of the author ’s
doctoral dissertation. The section “Research methodology”describes the research design
and methods. It is preceded by a section presenting the analytical framework for the
research, built on existing literature on each of the three equality law institutions in focus,
and it is followed by a presentation of the findings of the socio-legal inquiry in Croatia,
Macedonia, and Slovenia. The article closes with a recap of the main conclusions
presented herein.
Processing a discrimination case —analytical framework
Various procedural aspects have been in the focus of scholars discussing the theory and
practice of discrimination litigation. In this article the focus is on the shifting of the burden
Kotevska 387
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