January 17, 2017

Mai Chen: Multiple Ground Discrimination

Published by the New Zealand Law Society in LawTalk. A 21st century necessity.

A new report by the Superdiversity Centre for Law, Policy and Business, to be published on or before February 2017, examines the need for an intersectional approach to discrimination law.

Intersectional discrimination arises where discrimination is experienced by a complainant on the basis of more than one protected characteristic, which cannot usefully or effectively be broken down into its constituent parts. The Diversity Matrix: Refreshing What Diversity Means for Law, Policy and Business in the 21st Century examines the implications of adopting a “matrix” approach to diversity for the enforcement of New Zealand’s anti-discrimination laws, taking into account issues experienced by overseas courts in intersectional discrimination cases.

Intersectional discrimination has received little consideration in New Zealand to date, in contrast to overseas jurisdictions, despite New Zealand’s growing superdiversity.

According to the 2013 Census, a quarter of Auckland’s population are already Māori, Pasifika and Asian women, and the statistics show that they generally get paid less than European men and women, and Māori, Pasifika and Asian men.

It is well-documented that women from ethnic minorities may not only suffer discrimination on the basis of sex, but also race discrimination, resulting in a compounded or “double” disadvantage. A 2013 survey of New Zealanders found that migrants from the South East Asia region were most likely to report workplace discrimination (14.6%), followed by those originating from the Middle East, Latin America or Africa (12.8%). The survey found that women were more likely to experience discrimination than men, whether foreign-born or New Zealand-born. Therefore, adopting a “single axis” view of diversity and discrimination – for example, addressing gender or ethnicity only – is going to reflect fewer people’s real lived experiences over time. As the United States Court of Appeal has said: “the attempt to bisect a person’s identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences”.

Discrimination complaints

The Human Rights Commission’s statistics over the past five years show that discrimination complaints are increasingly based on more than one ground of discrimination – from 9.19% of complaints in 2011/12 to 15.4% in 2015/16.

The majority of these complaints concern race and sex, followed by disability and age, sex and age (older women), and race and disability.

Discrimination claims based on multiple grounds are likely to increase as New Zealand’s diversity grows. Growing numbers of New Zealanders are identifying with different cultures and ethnicities due to migration and ethnic intermarriage, which in turn is leading to greater religious and linguistic diversity. The faster speed of travel means that we are closer to everywhere, and migration, tourism and international students are key drivers of New Zealand’s economy.

Overseas courts have recognised that a different approach is needed in intersectional discrimination cases to fully understand the nature and extent of the disadvantage experienced by the claimant, and to properly remedy the harm suffered.

Continuing to treat discrimination as though it occurs along a single axis fails to take into account the matrix of indivisible and intersecting factors that comprise each person’s identity. By restricting their analysis to individual violations of substantive rights suffered by claimants in such cases, the courts risk failing to address the structural inequalities that create and legitimise intersectional discrimination, and also cannot remedy the systemic inequality which creates the conditions for these violations.

The English courts have adopted a narrow approach to such cases, tending to require the selection of a comparator group, whereas the Canadian jurisprudence has focused on the compounding disadvantage to the claimant. The United States Courts have held that claimants belonging to groups subject to unique types of stereotyping – such as black and Asian women – are protected classes of claimants who may allege discrimination on the basis of two or more intersecting grounds, ie gender and ethnicity, not just one or the other. The European Courts have not yet adopted an intersectional approach to discrimination claims, though they have recently begun to express support for such an approach. Most of the European cases involving intersectional discrimination to date have either been analysed through a single-axis lens or have focused on alleged violations of claimants’ substantive rights, for example, the right to religious freedom, rather than discrimination.

The overseas jurisprudence, though not binding on the New Zealand courts, will likely be instructive to the New Zealand Courts and the Human Rights Review Tribunal (HRRT). The New Zealand courts and the HRRT have not yet addressed the implications of when two or more pleaded grounds of discrimination “intersect”, as intersectional discrimination has not been expressly pleaded by claimants in discrimination cases. The HRRT has, however, upheld discrimination claims based on more than one ground, and considered the double disadvantage experienced by some claimants, despite intersectional discrimination not being raised.

Multiple ground approach

The overseas cases show that overseas courts have expressed support for, and increasingly applied, a multiple ground approach to discrimination. They also illustrate the issues that overseas courts have encountered in analysing intersectional discrimination cases, but also show that such issues are not insurmountable.

Such issues include the selection of an appropriate comparator group (if any), issues relating to proof and causation where more than one ground of discrimination is pleaded, and whether establishing discrimination on more than one ground should result in a higher damages award where the claimant has experienced a compounded disadvantage.

There is nothing in New Zealand’s current anti-discrimination laws preventing the adoption of an intersectional discrimination approach in appropriate cases. Indeed, our courts have emphasised that, when interpreting anti-discrimination legislation such as the New Zealand Bill of Rights Act 1990 (NZBORA) and the Human Rights Act 1993 (HRA), a purposive, liberal and untechnical approach should be applied so as not to undermine the purpose of human rights legislation.

The United Nations human rights committees, in interpreting international human rights conventions to which New Zealand is a party and on which our human rights legislation is based (such as the International Convention on Civil and Political Rights and the Convention on the Elimination of Discrimination Against Women), have also recognised that intersectionality is central to understanding the scope of state parties’ obligations under these conventions. These committees have expressly recommended that state parties recognise the compounding negative effect of intersectional discrimination on specific vulnerable groups.

This suggests that, if intersectional discrimination is pleaded before the courts, they would likely conclude that the right to freedom from discrimination affirmed in s 19(1) of the NZBORA is broad enough in scope to encompass such claims.

Greater recognition of multiple ground discrimination is needed by lawyers to plead intersectional discrimination, which should then flow through to the HRRT and the courts.

In a previous New Zealand Law Commission study on the challenges that women face in accessing legal services, Māori and Pacific women reported that lawyers needed greater knowledge of those women’s everyday lives and needed to communicate legal information in an understanding and understandable manner.

Many respondents reported that the criminal justice system was unresponsive not only to issues of culture, but also to gender. If lawyers know to plead an intersectional approach, the courts and the HRRT are more likely to be amenable to adopting an intersectional discrimination approach, and reporting of multiple ground discrimination is likely to increase.

It would be consistent with the statutory purpose of the Human Rights Commission to undertake an active role in promoting awareness of intersectional discrimination, generally and as part of its complaints resolution process, so as to bring greater visibility to this issue affecting the human rights of increasing numbers of New Zealanders.

Although law reform may not be needed for the courts to recognise intersectional discrimination, clarifying that the NZBORA and the HRA encompass intersectional and multiple ground discrimination, as has occurred in Canada with the insertion of s 3(1) of the Canadian Human Rights Act, would ensure greater certainty for claimants, as well as improving awareness of intersectional discrimination.

Ultimately, the experience of an increasing number of New Zealanders will be misrepresented by discrimination conceived along a single axis line. The legal profession needs to be alive to cases of intersectional discrimination, so that our anti-discrimination framework is responsive to the unique experience of claimants in such cases.
Mai Chen is Chen Palmer managing partner and Adjunct Professor at Auckland University Law School. The Diversity Matrix: Refreshing What Diversity Means for Law, Policy and Business in the 21st Century by Mai Chen will be launched in Auckland on 15 February 2017. It follows the Superdiversity Stocktake: Implications for Law, Policy and Business last November, published by the Superdiversity Centre on 3 November 2015, which has now been downloaded over 130,000 times.