Multiple discrimination and intersectionality: issues of equality and liberty

Abstract

Kimberle Crenshaw was the first to identify the challenges of intersectional claims in law. On the European level, the term most often used is multiple discrimination. After 50 years of implementation of civil rights legislation, the United States offers a unique critique of the scope and the limits of anti‐discrimination law. The interpretation of concepts like disparate treatment and disparate impact discrimination in employment reveals the complexity of individual and systemic discrimination. American empirical studies of the grounds of discrimination reflect issues of equality and liberty. The transatlantic comparison allows us to revisit the analysis of the intersections between forms or systems of oppression, domination, or discrimination in law from a different standpoint in Europe.

Challenging algorithmic profiling: The limits of data protection and anti-discrimination in responding to emergent discrimination

“…There is a need for new strategies or methods for showing discrimination that do not rely on direct comparisons, as it may be so specific – or personalised – that any comparisons become meaningless (see e.g. Marcat-Bruns, 2018). In relation to intersectional discrimination in the EU, Marcat-Bruns (2018: 49) argues that ‘more efficient institutional monitoring’ is required, and we agree that this is the case in relation to emergent forms of discrimination also.…”

“…Marcat-Bruns, 2018). In relation to intersectional discrimination in the EU, Marcat-Bruns (2018: 49) argues that ‘more efficient institutional monitoring’ is required, and we agree that this is the case in relation to emergent forms of discrimination also. Fredman (2016: 8) argues that intersecting relationships of power can be analysed and counteracted by four dimensions: ‘(i) the need to redress disadvantage, (ii) the need to address stigma, stereotyping, prejudice and violence, (iii) the need to facilitate voice and participation; and (iv) the need to accommodate difference and change structures of discrimination.’ We argue these arguments for improvements based on intersectional theories of equality can inspire countermeasures for emergent forms of algorithmic discrimination.…”

“…Yet, this will only be possible via broad anti-discrimination logics and protections, that operate independently of specific protected grounds, for example by embracing provisions such as Article 14 of the European Convention on Human Rights that prohibits discrimination on the basis of any possible ‘other status’. Learning from arguments raised about amending anti-discrimination protections to encompass intersectional discrimination, there should be recognition of ‘the risks of compartmentalisation generated by the existence of [specific] grounds for discrimination’ (Marcat-Bruns, 2018: 48). In turn, this will contribute to the third dimension, to increased participation and voice, not only for representatives of certain groups, but for all who may be impacted by discriminatory processes.…”

“…Following Crenshaw’s (1989) seminal piece there was wide recognition and acceptance, including within the judiciary, of intersectional forms of discrimination (see e.g. Marcat-Bruns, 2018). Drawing attention to the possibilities of emergent forms of discrimination in algorithmic profiling in this way may also contribute towards a rethinking of anti-discrimination approaches, particularly when they connect to exclusion and marginalisation: ‘this recognition might narrow the focus on those who are most often disenfranchised at the intersection of multiple forms of subordination’ (Marcat-Bruns, 2018: 47, citing Crenshaw).…”

“…Marcat-Bruns, 2018). Drawing attention to the possibilities of emergent forms of discrimination in algorithmic profiling in this way may also contribute towards a rethinking of anti-discrimination approaches, particularly when they connect to exclusion and marginalisation: ‘this recognition might narrow the focus on those who are most often disenfranchised at the intersection of multiple forms of subordination’ (Marcat-Bruns, 2018: 47, citing Crenshaw). Moreover, the existing safeguards for the legally encoded protected groups need to be ameliorated.…”