Revisiting intersectionality for EU anti-discrimination law in an economic crisis - A critical legal studies perspective

Schiek, Dagmar

doi:10.3280/sd2016-002003

Cited by 4 publications

(6 citation statements)

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“…Intersectionality as a socio-legal concept Intersectionality, dubbed a mezzo level theory (Cho et al, 2013), has travelled across disciplines and continents, 3 serving to analyse policy development (Hancock, 2015) and add analytical precision to sociological studies (Walby and Verloo, 2012;Winker and Degele, 2011). Its very complexity (Schiek, 2016) has been criticized as too challenging (Chow, 2016), particularly for legal studies (Conaghan, 2009) and for litigation (Fredman, 2016a, pp. 80-85).…”

Section: Intersectionality Intersectional Discrimination and Litigationmentioning

confidence: 99%

“…Instead, anti-discrimination law has been linked to the politics of difference (Young, 2009) or identity-focused cultural politics that differ fundamentally from class-based politics (Fraser, 2007). As expanded in more detail elsewhere (Schiek, 2005(Schiek, , 2011b(Schiek, , 2016, these approaches by US American authors are also useful for theorizing European anti-discrimination law as addressing exclusion based on cultural derecognition. This again raises the question whether anti-discrimination law protects groups or individuals in relation to their ascribed group membership.…”

Section: Intersectionality and Purposes Of Anti-discrimination Lawmentioning

confidence: 99%

“…In identifying the purpose of substantive anti-discrimination law, views are divided on whether anti-discrimination laws should have a primarily redistributive purpose (Fredman, 2011) or focus on enabling individuation (i.e. moulding one’s life beyond traditional stereotypes) and respecting difference in favour of those suffering disadvantage (Schiek, 2016). This is related to the question whether anti-discrimination laws are constructed to address ills that differ from those addressed by ‘traditional’ Western social law and policy, which are based on the class conflict and aim at erasing inequalities along with different classes altogether.…”

Section: Intersectionality Intersectional Discrimination and Litigationmentioning

confidence: 99%

“…After all, the grounds on which discrimination is banned derive from social movements demanding recognition, such as the feminist, the anti-racist and the disability movement (Fredman, 2011, pp. 82–112; Schiek, 2016, pp. 25–27).…”

Section: Intersectionality Intersectional Discrimination and Litigationmentioning

confidence: 99%

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On uses, mis-uses and non-uses of intersectionality before the Court of Justice (EU)

Schiek

2018

International Journal of Discrimination and the Law

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Intersectionality, frequently used by political scientists, sociologists and anthropologists as a highly abstract concept, originated as the socio-legal critique, by Kimberlé Crenshaw, of US courts' ignorance of discrimination against Black Women specifically. That ignorance emerged in cases such as DeGraffenreid, in which the claimants challenged a collective redundancy scheme resulting in dismissing all Black Women on grounds of indirect discrimination. The court refused to recognise Black Women as a category of relevance and did not find any discrimination because the scheme did not impact disproportionally on White Women or Black Men. As regards EU law, some socio-legal scholars of today doubt that intersectionality has any value as a practically relevant concept. This article discusses the question whether and how intersectionality can and should be used in applying EU non-discrimination law through a critical analysis of three ECJ rulings delivered between 24 November 2016 and 14 March 2017. The Parris case concerning the pension claims of two white homosexual Men can be qualified as the Court's "DeGraffenreid moment" because it refused to recognise discrimination in a case where the intersection of being over 63 and homosexual was the basis of excluding the Men from a survivor's pension. The Court refused to recognise combined discrimination and found that neither age nor sexual orientation in isolation were the reason of that exclusion. The more recent Achbita and Bougnaoui cases seem to

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Section: Intersectionality Intersectional Discrimination and Litigationmentioning

confidence: 99%

Section: Intersectionality and Purposes Of Anti-discrimination Lawmentioning

confidence: 99%

Section: Intersectionality Intersectional Discrimination and Litigationmentioning

confidence: 99%

Section: Intersectionality Intersectional Discrimination and Litigationmentioning

confidence: 99%

See 2 more Smart Citations

On uses, mis-uses and non-uses of intersectionality before the Court of Justice (EU)

Schiek

2018

International Journal of Discrimination and the Law

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“…As it has shifted, however, from viewing law as mainly instrumental to perceiving it as both ideological and institutionalcentral in constituting social entities/subjectsintersectionality analysis has broadened to include the examination of many such categories. 8 Schiek, who has criticised later sociological-discourse developments within intersectionality theory for being overly differentiated, argues that a sufficiently precise and non-exclusive definition of grounds of discrimination for the purpose of covering intersectional situations can be achieved if EU discrimination law is refocused on the three nodes of sex, race and disability (with age, together with illness, addressed under the last) (Schiek, 2016a(Schiek, , 2016b. She thus arguesin relation to discrimination lawfor a rather more restrictive approach to intersectionality in tune with the function of discrimination law, in which the focus is on market inclusion and equal opportunities (Schiek, 2016b).…”

Section: Introductionmentioning

confidence: 99%

Elder law and its subject: the contextualised ageing individual

Numhauser-Henning¹

2019

Ageing and Society

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Elder law is often approached in terms of a ‘body’ of law. In this article, I argue for a contextualised and externalised perspective on the ageing individual as the subject of elder law. Elder law relates to the implications of law as an institutionalisation of society seen through the lens of older persons. The aged subject is a contested and differentiated social construct to be studied in relation to an externalised social ‘problem’ and properly contextualised. Whereas the ageing individual in the context of labour law and anti-discrimination regulation turns out to be remarkably young, the specific history of LGBT persons in society comes to the fore in cases where age intersects with a ground such as sexual orientation. The ‘ageing’ worker must thus be understood in relation to work as the dominant distributive order in society, and in relation to institutions and developments associated with work. Due to the role of age as a traditional social stratifier, the prohibition against age discrimination has been given a weaker format than have prohibitions against other kinds of discrimination, and the ban on ageism has failed to achieve a clear legal status. Deficiencies in the measures taken against age discrimination are also evident in their incapacity to address situations where age intersects with other grounds, resulting in a compartmentalised application and interpretation of discrimination bans, leaving vulnerable sub-groups without protection. In sum, elder law is very much a field in process and – although arguing for the added value of a contextualised perspective – it may for the time being suffice to say that ‘elder law is what elder law researchers do’.

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On Uses, Mis-Uses and Non-Uses of Intersectionality Before the European Court of Justice (ECJ): The ECJ Rulings Parris (C-433/15), Achbita (C-157/15) and Bougnaoui (C-188/15) as a Bermuda Triangle?

Schiek

2018

SSRN Journal

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Revisiting intersectionality for EU anti-discrimination law in an economic crisis - A critical legal studies perspective

Cited by 4 publications

References 35 publications

On uses, mis-uses and non-uses of intersectionality before the Court of Justice (EU)

On uses, mis-uses and non-uses of intersectionality before the Court of Justice (EU)

Elder law and its subject: the contextualised ageing individual

On Uses, Mis-Uses and Non-Uses of Intersectionality Before the European Court of Justice (ECJ): The ECJ Rulings Parris (C-433/15), Achbita (C-157/15) and Bougnaoui (C-188/15) as a Bermuda Triangle?

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