1. Uses and misuses of intersectionality before the European Court of Justice
This paper revisits the concept of intersectionality in anti-discrimination law and its application in the economic crisis. Austerity measures many governments take in response to the economic crisis have spurred a heightened interest in strategies to challenge austerity, including legal challenges. Anti-discrimination law is promoted as one of those instruments, and intersectionality is seen as a means to achieve more credible or successful legal challenges of austerity: some authors argue that this is the approach to soften anti-discrimination law, and to allow it to be used in order to further wider social policy aims.
My paper challenges this approach, arguing in favour of maintaining a clear overarching aim of anti-discrimination law instead of using it for achieving general social policy aims.
Equinet 2016

2. A disjointed field? sex/ gender “Article 19 grounds”
Equal Treatment “Race “ Dir 2000/43: Employment, social security, social advan-tages, health, education, goods & services
sex/ gender
Employment Dir 2006/54
“Article 19 grounds”
Equal Pay Article 157 TFEU+ Dir
Goods & Servic-es (NOT educa-tion and health) Dir 2004/113
“Umbrella Directive” 2000/78 on religion & belief, age, disability, sexual orientation: employment & occupation
Social Secu-rity Gender Dir 79/7
Planned: expand scope of “Umbrella Directive” to correspond to Dir 2000/43
Self employed (2010 new,)

3. Policy development & NGO support
European anti-racism movement
Gender Experts
disjointed
Bottom up origins in many MS (East?)
Institutional feminism influential (& funded) in EU – in the past
Divided between “gender first” activists and supporters of intersectionality
Diverse national roots
“Starting line” (UK/Benelux), strategic inclusion of sexualities, age, religion and belief
COM funding for this combination from 2003
Supportive of intersectionality in parts
Disability lobby
Bottom up origins in many MS, EU dimension from 1980s
COM funding e.g. for ANED from 1990s
Strengthened by EU accession to UN CPRD
Supports intersectionality

4. Positive EU law supports intersectionality
Directives 2000/43 and 2000/78
“women are often the victims of multiple discrimination”
Recital 14 Dir 2000/43, Recital 8 Dir 2000/78/EC
Commission to report on multiple discrimination and gender mainstreaming
Article 17 and 19 respectively
“gender” Directives:
No reference to multiple discrimination
While there is no positive definition of intersectional or multiple discrimination, EU law can be interpreted as corresponding to intersectional inequalities
EU law does not (yet) use the term multiple discrimination in legally binding provisions. EU legislation banning discrimination in the market place clearly can be interpreted to include a ban on intersectional discrimination, although it does not use the term in legally binding provisions(Schiek, 2005). The recitals of the directives mention multiple discrimination, and two of them even contain an obligation to report on the phenomenon. Interestingly, the recitals of the gender equality directives, even those adopted after Directives 2000/43/EC and 2000/78/EC, do not mention multiple discrimination at all. Not even the youngest directive, the revised directive on equal treatment of women and men in self-employment of 2010, refers to multiple discrimination – although there is some argument that minority women are steered towards self-employment for lack of integration in the employment market
Further, while acknowledging intersectional discrimination as legal wrong on the basis of several bans of discrimination for specific grounds has been a problem in some common law jurisdictions in the past, a teleological interpretation of EU secondary law in line with the “dynamic interpretation” the Court of Justice’s typically uses in other fields would suggest a coherent interpretation of the Directives to include a ban on intersectional discrimination (Schiek, 2005). Accordingly, national courts on the European Continent and in Scandinavia have accepted intersectional discrimination more readily than Irish and British courts. Nevertheless, the Court has as yet hesitated to employ its dynamic interpretation to this end, and advocates have not promoted intersectional discrimination in litigation strategies (Bullock & Masselot, 2012; Onufria, 2014 ; Schiek, 2009; Schiek & Mulder, 2011). [245]

5. Why should we use it? Recognising all dimensions of discrimination
Apply discrimination law to mono-intersectional cases
Avoid wide exceptions by cumulating claims
Award higher damages/stricter remedies

6. Precondition: awareness for power imbalances
Advantage
Men
Whites
Majority religion/ethnicity
Best years of life
Heterosexual
Perceived as able(bodied)
Disadvantage
Women
Men (and women) disturbing gender expectation
“BME”
Muslims
Too old or young
Non majoritan life style
disabled

7. Enigma before the Court
First case to discuss intersectionality
White old man – homosexuality, marriage pension
Parris C443/15, AG Kokott promotes intersectionality
Court rejects discrimination claim
Two “head scarf cases” : Ags do not touch upon intersectionality
Achbita C-157/15, AG Kokott tends to justify head scarf ban
Bougnaoui C-188/15 AG Sharpstone tends to consider this discrimination

8. Parris
Occupational pension scheme only provides for survivor‘s benefit if partner married / became civil partner before 60th birthday
As Ireland only introduced homosexual civil partnership in 2011, there is a whole generation of homosexual lecturers who are unable to pass on survivor pensions

9. AG Kokott Discrimination on grounds of homosexuality? Indirect
Legitimate aim (avoid abuse)
Disproportionate means
Age discrimination
Direct age discrimination
Not justified
„several factor discrimination“
is in evidence here
requires stricter standards for justification

10. Court No discrimination on grounds of homosexuality
Age discrimination is justified (Article 6 (2) Directive
No consideration of intersectionality!

11. Achbita case – AG Kokott
Stresses throughout that the claimant is a Muslim woman
However, the ban on religious, political and philosophical signifiers is NOT direct discrimination on grounds of religion and belief
General policy, several „grounds“
The indirect discrimination is justified (business interest, neutral clothing)

12. Bougnaoui case – AG Sharpstone
Individual demand to not wear headscarf when contacting customer is direct discrimination on grounds of religion
In principle, this could be justified by reference to genuine business requirement
In this specific case, the employer has not been convincing though

13. Why use intersectionality??
Parris case
Seems the only way to recognise the specific harm
Achbita / Bougnaoui case
Gender & ethnic dimension of cases springs in the face –the law to recognise this?
Justification of gender and ethnic discrimination more demanding
Acknowledging intersectionality might lead to higher damages

14. Thank you for your attention !