The evolution of multiple discrimination today

Author:Roxana Moisoiu
Pages:93-101
SUMMARY

Democracy and human rights achieve indestructible unity; democracy marks the emancipation of the people, their becoming as a subject of government, emancipation presupposes the power of selfdetermination of each person, thus endowing them with the rights that are inherent as man and citizen. By adhering to international documents, the states of the world commit themselves to take legislative and administrative action, acting progressively, using appropriate means, to exercise these rights without discrimination. Discrimination is a dynamic concept whose content and approach is continually evolving. The proposed specific objective is the conceptual clarification regarding multiple discrimination and the research and approach way of this type of discrimination by state institutions. Thus, it can be dealt with in two respects: a) multiple discrimination as additional discrimination addressed uniaxially and b) multiple discrimination as intersectional discrimination. Collaboration between state institutions has the role of reducing discrimination and encourages the development of back-up actions in support of effective combating of all forms of discrimination.

 
CONTENT
The evolution of multiple discrimination today 93
THE EVOLUTION OF MULTIPLE DISCRIMINATION TODAY
Roxana MOISOIU1
ABSTRACT
Democracy and human rights achieve indestructible unity; democracy marks the emancipation of
the people, their becoming as a subject of government, emancipation presupposes the power of self-
determination of each person, thus endowing them with the rights that are inherent as man and citizen.
By adhering to international documents, the states of the world commit themselves to take
legislative and administrative action, acting progressively, using appropriate means, to exercise these
rights without discrimination.
Discrimination is a dynamic concept whose content and approach is continually evolving.
The proposed specific objective is the conceptual clarification regarding multiple discrimination
and the research and approach way of this type of discrimination by state institutions. Thus, it can be
dealt with in two respects: a) multiple discrimination as additional discrimination addressed uni-
axially and b) multiple discrimination as intersectional discrimination.
Collaboration between state institutions has the role of reducing discrimination and encourages
the development of back-up actions in support of effective combating of all forms of discrimination.
Equality and non-discrimination must be fundamental rules of government
action in any democratic state. The idea of equality and non-discrimination has, over
time, been placed on an important level in world law. In the beginning, equality and
non-discrimination were regulated by normative acts in different fields, then they
were asserted in the Community jurisprudence, reaching a general principle present
in the draft normative act with constitutional value at the level of the European
Union. The principle of equality is considered to be a derivation of Community law
which presupposes the elimination of discrimination by the equal treatment of parties
in identical and comparable situations. It is provided, by way of application, even in
the texts of the Community treaties (Treaty establishing a Constitution for Europe,
adopted by consensus of the European Convention in 2003, which was sent to the
President of the Council of Europe in Rome (18 July 2003) and signed on October 29,
2004 in Rome (including Romania, even if it had observer status), contains „Equality”
as a title.)
The principle of equality is to be considered as a consequence of the nature of
the community law, with the direct consequence of non-discrimination. Thus,
alongside the principle of equality, the principle of non-discrimination applies to
1 PhD candidate, National University of Political Studies and Public Administration, Bucharest,
Romania
Law Review vol. III, Special issue 2017, pp. 93-101
94 ROXANA MOISOIU
all legal relationships that can be established within the territory of the community
regardless of where they have been agreed or where produce the effects.
The judicial practice of the courts of the European Union has contributed to the
nuance of the content of these principles but also of the concepts of equality and
discrimination. The right to equality is the right of all human beings to be equal in
similar conditions, to be treated with respect, dignity and consideration and to
participate on an equal footing in any aspect of economic, social, political, cultural
or civil life. Hence the idea of equal opportunities for social access that has become
a fundamental value for all democratic societies.
The Universal Declaration of Human Rights2 was a landmark achievement. By
setting out universal values and a common human rights standard for everyone, it
underlines how every person is born free and equal. It has helped shape human rights
all over the world and in Europe has guided the development of the European
Convention on Human Rights and the EU’s very own Charter of Fundamental Rights.
According to the principle of equality, all human beings are born equal, have
equal rights and must be treated equally. Unfortunately, this natural principle of
equality has not been and is not fully assured to all human beings. Over time,
society has generated inequalities. Emphasizing the particular importance of the
principle of equality in democratic societies, Montesquieu argues: „All men must
enjoy the same happiness and the same advantages, each must feel the same pleasure
and nurture the same hopes, and this can only be achieved by general temperament
„Because” the love of democracy is the love of equality. „Thus, the application of
this principle gives people the feeling that they are treated with the due respect
and enjoy the dignity and justice that all human beings deserve.
The right to equality before the law and the protection of all against discrimination
are fundamental norms of international human rights law. The evolution of
legislation and jurisprudence on the implementation of the principle of equality and
non-discrimination has significant dynamics in recent years, both at the international
level and in the national legal system of the states.
Discrimination as a problem of today's societies has become more and more
important in recent years; that is, instead of giving signs of disappearance, it knows,
thanks to its practices, higher odds. Preventing and combating discrimination is a
basic obligation of all the world's states. Legislative provisions of a discriminatory
nature contribute to the erosion of any state in which they act; sometimes slow,
sometimes not, but regardless of the form of action and its impact in society contributes
to the degradation of social life. Discrimination as a modern-day phenomenon knows
different forms, which are related to each society, on a case-by-case basis.
2 The Universal Declaration of Human Rights was adopted on December 16, 1948, by Resolution
217 A at the Third Session of the United Nations General Assembly. Through a historical act, the
Assembly asked all member countries to publish the text of the Statement, which was then
„distributed, exhibited, read and commented in schools and other educational institutions without
distinction on the political condition of the countries or territories”. The document has a preamble and
30 articles defining the main rights of the human being.
The evolution of multiple discrimination today 95
The multiple discrimination phenomenon has been treated from several points
of view.
Multiple discrimination occurs when a person is discriminated against by several
criteria, such as sex and religion, age and ethnicity, etc.
According to the FRA report, multiple discrimination can be:
• cumulative: when specific effects can be distinguished.
or
• intersectional: when discrimination is based on the combination of two or
more characteristics.
„In 2017, the Agency marked its 10-year anniversary at a time when fundamental
rights continue to be challenged. It was an opportunity to take stock of what has
been achieved while acknowledging much still remains to be done to reposition
respect for fundamental rights as a core value across Europe. Building on the success
of its, the landmark fundamental rights event will focus on strengthening the ties
that bind everyone in the EU to the societies they live in. It will demonstrate that
human rights are for everyone and must be respected by everyone. Increasing the
sense of belonging will be greatly facilitated when partnerships are enhanced among
communities and institutions that rarely engage with each other. The Forum aims to
provide the space for this to happen. „Raport FRA Day in, day out we see efforts to
chip away at the bedrock of human rights on which Europe is founded. Human
Rights Day on 10 December is a time to reaffirm our commitment to human rights
and stand up for equality, justice and human dignity for ourselves and others.
„Not a day goes by without some human right being violated somehow. While
this is not new, the human rights system is increasingly under attack,” says FRA
Director Michael O’Flaherty. „From the women at home to newly-arrived migrants,
they all face intolerance that is far from the hopes of those that drafted and signed
the Universal Declaration. We must all take a stand and uphold the values of
equality, justice and dignity that have deep roots in European society. Multiple
discrimination has always existed; yet it has not always been recognized as a legal
concept. Current challenges regarding multiple discrimination have been magnified
by the global economic crisis, which has accentuated inequalities faced by the most
vulnerable members of society. In the domain of employment, there have been
deleterious effects in terms of increased unemployment, reductions in remuneration
and benefits, and cutbacks in government retraining and educational initiatives.
During economic crises, „it is more likely that the members of disadvantaged
groups are made redundant first3”.
3 European Union Agency for Fundamental Rights: The impact of the Racial Equality Directive -
Views of trade unions and employers in the European Union: Strengthening the fundamental rights
architecture in the EU IV, (Luxembourg, 2010) p.45. On the impact of economic crises on racism and
social cohesion, see Fact-Sheet on the impact of the economic crisis on discrimination and xenophobia,
UNESCO and Global Migration Group, 2009, http://www.globalmigrationgroup.org/pdf/UNESCO_
Fact-sheet_final.pdf (accessed 28 August 2010).
96 ROXANA MOISOIU
Multiple discrimination also continues to be deeply affected by the political
and social volatility of world. Ongoing tensions around national security, religious
diversity, race and gender have led to growing controversies around racial profiling
(predominantly affecting racialized Muslim men) and religious dress codes in the
workplace (affecting predominantly racialized Muslim women). In these contexts, it
is impossible to separate the overlapping strands of exclusion linked to national
and ethnic origin, race, religion, and gender4.
The term, „multiple discrimination” has been used in different way. In Europe,
the terminology of multiple discrimination has been relied upon in a number of major
reports and policy statements. It was recently defined to embrace discrimination that
is based “on any combination of grounds” or „on any one or more grounds5”.
At the regional level, the European Union has been the most active in pursuing
policy and law reform initiatives to recognize, define and respond to multiple
discrimination. The Fundamental Rights Agency in Europe, for example, was
established to „ensure respect of fundamental rights in…policymaking” and is
mandated to work on „discrimination based on sex, race or ethnic origin, religion
or belief, disability, age or sexual orientation and against persons belonging to
minorities and any combination of these grounds (multiple discrimination)6.
Multiple discrimination is often tackled in the sense of single axial discrimination.
Discrimination occurs in different contexts and implies different criteria. Neither EU
legislation nor most national laws specifically recognize multiple discrimination and
do not provide for measures to manage it. Only six of the 27 Member States are
addressing multiple discrimination in their legislation.
From a uni-axial point of view, it is found that discrimination is made for
different reasons that occur in different situations. Multiple discrimination must be
seen as an additional discrimination in which multiple forms of discrimination based
on different and different criteria can be joined in different contexts. Alongside the
4 J. Syed and E. Pio: „Veiled diversity? Workplace experiences of Muslim women in Australia”,
in Asia Pacific Journal of Management, (2010), Vol. 27, No.1, pp. 115-137; see also G. Bouchard and
C. Taylor: Building the future: A time for reconciliation (Gouvernement du Québec, 2008); D. Schiek
and V. Chege: European Union non-discrimination law: comparative perspectives on multidimensional
equality law (London; New York, Routledge-Cavendish, 2009).
5 I. Solanke: „Putting race and gender together: A new approach to intersectionality”, in Mo dern
Law Review (2009), Vol. 72, No. 5, pp. 723-749 at 727-31. See also, E. Grabham et al. (eds.):
Intersectionality and beyond – Law, power and the politics of location (New York, Routledge-
Cavendish., 2009). For examples from North American government agencies, see Ontario Human
Rights Commission: An intersectional approach to discrimination: Addressing multiple grounds in
human rights claims, Discussion Paper, Policy and Education Branch, 9 October 2001; US Equal
Employment Opportunity Commission: „Intersectional Discrimination,” in Compliance manual
section 15: Race and color discrimination, at EEOC.gov, 19 April 2006, http://www.eeoc.gov/policy/
docs/race-color.html#IVC (accessed: 21 July 2010).
6 See Council Decision (2008/203/EC) implementing Regulation (EC) No 168/2007 as regards the
adoption of a Multi-annual Framework for the European Union Agency for Fundamental Rights for
20072012, part (b) http://fra.europa.eu/fraWebsite/about_fra/what_we_do/themes/themes_en.htm.
The evolution of multiple discrimination today 97
additional discrimination present in contemporary society, inter-secular discrimination
also takes place. This is a combination of discrimination that includes several sources
but acts complexly as a complicated and miraculous mixture, an intersection of
inseparable identities that positions differently in different contexts in society.
Multiple discrimination is manifested at an individual, organizational and
institutional level. This is why complementary strategies, policy approaches, and
legislative and legal solutions are needed.
Various types of analyzes, surveys, case studies at both national and international
level have been carried out to reduce this phenomenon. The results of the
investigations have been transposed into legislation and implementations and
mechanisms aimed at removing this phenomenon and the causes of its production.
It has been found that the phenomenon of multiple discrimination has common
prerequisites as well as other types of discrimination, namely negative stereotypes
about certain groups and subgroups, negative feelings towards individuals
belonging to certain groups and subgroups, and certain behavioral patterns. It has
been concluded that the most important intervention lever for reducing the
phenomenon of multiple discrimination is the intervention of local and central
authorities at vulnerable communities that are predominantly exposed to social
exclusion and marginalization. Given that legislation provides protection for
disadvantaged groups and sets limits to the inclusion of its members, a very
important role is played by the media, which could promote tolerance and mutual
respect, and remove racial problems, prejudices and stereotypes, beliefs leading to
behaviors discriminatory and implicit, would help combat them.
The phenomenon of multiple discrimination has intensified with the influx of
migration. Exodus of migrants in states with established democracies has developed
a new phenomenon. Their acceptance and integration among the indigenous
population is increasingly difficult to tolerate. The source of intolerance is
undoubtedly the instinct of self-preservation. Fear and natural caution towards what
is unknown, unusual and foreign, often degenerates into hostility and therefore into
intolerance. For man, hostility and intolerance are permanent sources of conflict,
which is particularly dangerous.
The European Union Agency for Fundamental Rights (FRA) states the most
recent report on migration-related fundamental rights issues points to persisting
concerns as well as progress across a number of EU Member States. Released on
International Migrants Day on 18 December it shows that while asylum applications
have fallen in some Member States, they have risen in others which continues to
strain resources and have a knock-on effect on services”. In view of the increasing
numbers of refugees, asylum seekers and migrants entering the EU, the EU
Agency for Fundamental Rights has been collecting relevant data since November
2015. These data focus on the fundamental rights situation of people arriving in
Member States particularly affected by large migration movements. The countries
98 ROXANA MOISOIU
covered are: Austria, Bulgaria, Denmark, Finland, France, Germany, Greece,
Hungary, Italy, the Netherlands, Poland, Slovakia, Spain and Sweden7”.
Coming from different worlds, migrants have brought their culture, customs
and traditions, and the local inhabitants hardly accept the new one. A type of
discrimination centered on belonging to the place has been created. Their
integration into the majority population can be done over time, through non-
discriminatory measures and adequate public policies. In fact, the effectiveness of
these measures also depends on the level of openness of the members of society to
the objectives pursued.
„The EU’s Charter of Fundamental Rights prohibits discrimination on the
grounds of race, colour, ethnic origin and religion or belief. The EU has passed
detailed legislation that addresses discrimination in various areas of life. Member
states are also bound to combat public incitement to violence and hatred against
people of different race, colour, religion, or national or ethnic descent by means of
criminal law8”.
Contemporary society needs the development of campaigns to raise awareness
of the rights guaranteed in situations of discrimination, appropriate campaigns but
to the specifics of the target groups that should become a priority. The concept of
multiple discrimination is a dynamic concept whose significance and approach,
both at the level of theory and policy, naturally evolved over time. Although human
rights are universal and all are born equal – life, by virtue of its objective diversity,
does not ensure for all equal opportunities to develop and exercise its rights, with
the danger of inequalities occurring. These inequalities should be understood and
tolerated.
No one should suffer because of discrimination, abuse, because everyone
deserves happiness. Eliminating multiple discrimination is one of the prerequisites
for building a fair and progressive society.
A basic objective of the European Union is to combat social exclusion and
discrimination. There are two basic directives in the EU that prohibit discrimination
on a number of criteria:
- The Directive on Racial Equality: this requires states to prohibit discrimination
on criteria of racial or ethnic origin in all social activities – employment, education,
health etc.
- The Employment Equality Directive: It requires states to prohibit discrimination
based on religion or belief, disability, age and sexual orientation on employment and
vocational training.
Efforts at European level can only be effective if they are built on the solid
foundation of dedicated public authorities, equality bodies, civil society, trade
7 The European Union Agency for Fundamental Rights ( FRA) – report - December - Highlights
1–30 November 2017.
8 FRA – Racism & related intolerances.
The evolution of multiple discrimination today 99
unions and employers at national, regional and local levels. By working harder and
keeping the highest level of commitment, progress can be made on the path to a fairer
Europe. The European Union and the Member States play essential, complementary
roles in delivering sound equality policies and actions. The equality directives have
been a key contribution at European level. Member States have the responsibility
to transpose them fully into national law, adapting them to national realities.
Several countries are above and below minimum standards.
In democratic countries, discriminatory practices are prohibited by international
human rights instruments. Article 7 of the Universal Declaration of Human Rights
states: „All men are equal before the law and have, without distinction, the right to
equal protection of the law. All people are entitled to equal protection against any
discrimination that would violate this Statement and against any challenge to such
discrimination”. The Charter of the United Nations9, in Articles 1, 55 and 75,
stipulates three times the obligation to respect human rights and fundamental
freedoms without any distinction of race, sex, language or religion. Article 26 of the
International Covenant on Civil and Political Rights10 states:
„All men are equal before the law and have, without any discrimination, the
right to equal protection of the law. In this respect, the law will prohibit any
discrimination and guarantee to all people equal and effective protection against
discrimination of any kind, such as race, color, gender, language, religion, public
opinion or any other opinion of national origin or social, wealth, birth or any other
circumstances ... 11”.
Observance of the principle of equality leads to the exclusion of the phenomenon
of discrimination. Discrimination involves limiting and violating human rights by
race, gender, nationality, language, religion, wealth, opinion, etc. Equality is
therefore a fundamental principle of human rights. The Constitution of Romania
mentions the principle of equality in Article 16, paragraphs 1 and 2, according to
which: „Citizens are equal before the law and public authorities without privileges
and discrimination. Nothing is above the law”. „The criteria for discrimination are
laid down in Article 4 (2) of the Constitution: „Romania is the common and
9 The United Nations Charter is a treaty that establishes the international organization called the
United Nations. It was signed at the United Nations Conference on the International Organization of
San Francisco, California, United States of America on June 26, 1945, of 50 of the 51 original member
countries (Poland, initially, then other states that were not represented at the conference, signed it
later). It came into force on October 24, 1945, after it was ratified by five permanent members of the
Security Council: the Republic of China (later replaced by the People's Republic of China), France, the
Union of Soviet Socialist Republics (later replaced by the Russian Federation), the United Kingdom,
and the United States and most of the other signatory states. As a charter, it is a constitutive treaty,
through which all members are part. Moreover, the Charter states that the United Nations' obligations
prevail over everyone other obligations under other treaties. Most countries in the world have ra tified
the Charter. A notable exception is The Holy See, who chose to remain permanently observer and
therefore is not a signatory of the Charter.
10 The International Covenant on Civil and Political Rights of 16.12.1966.
11 Carta.
100 ROXANA MOISOIU
indivisible homeland of all its citizens without discrimination based on race,
nationality, ethnicity, language, religion, sex, opinion, political vision, wealth or
social position. „The Romanian Constitution highlights two principles that ensure
equality and non-discrimination: the principle of equality before the law and
public authorities and the principle of non-discrimination.
In order to eradicate discrimination of any kind, it is necessary to have
effective cooperation at the level of the state institutions, but also within the civil
society. This may be possible by developing the education of the young generation
by promoting and implementing the principle of equality as a fundamental value
of human rights and democracy.
According to The European Union Agency for Fundamental Rights (FRA),
„The European Network of Equality Bodies, Equinet, held a conference on the 7th of
December in Brussels to look at how equality bodies can contribute to improving
inclusion of and non-discrimination in Europe”.
BIBLIOGRAPHY
• The Universal Declaration of Human Rights was adopted on December 16,
1948, through Resolution 217 A, at the Third Session of the United Nations General
Assembly.
• The United Nations Charter is a treaty that establishes the international
organization called the United Nations
• The International Covenant on Civil and Political Rights of 16.12.1966
I. Solanke: „Putting race and gender together: A new approach to
intersectionality”, in Modern Law Review (2009), Vol. 72, No.5, pp. 723-749 at 727-31.
See also, E. Grabham et al. (eds.): Intersectionality and beyond – Law, power and
the politics of location (New York, R
outledge-Cavendish., 2009). For examples from North American government
agencies, see Ontario Human Rights Commission: An intersectional approach to
discrimination: Addressing multiple grounds in human rights claims, Discussion
Paper, Policy and Education Branch, 9 October 2001; US Equal Employment
Opportunity Commission: „Intersectional Discrimination,” in Compliance manual
section 15: Race and color discrimination, at EEOC.gov, 19 April 2006,
http://www.eeoc.gov/policy/docs/race-color.html#IVC (accessed: 21 July 2010).
See Council Decision (2008/203/EC) implementing Regulation (EC) No
168/2007 as regards the adoption of a Multi-annual Framework for the European
Union Agency for Fundamental Rights for 20072012, part (b) http://fra.europa.eu/
fraWebsite/about_fra/what_we_do/themes/themes_en.htm
European Union Agency for Fundamental Rights: The impact of the Racial
Equality Directive - Views of trade unions and employers in the European Union:
Strengthening the fundamental rights architecture in the EU IV, (Luxembourg, 2010)
The evolution of multiple discrimination today 101
p.45. On the impact of economic crises on racism and social cohesion, see Fact-Sheet
on the impact of the economic crisis on discrimination and xenophobia, UNESCO
and Global Migration Group, 2009, http://www.globalmigrationgroup.org/
pdf/UNESCO_Fact-sheet_final.pdf (accessed 28 August 2010).
J. Syed and E. Pio: “Veiled diversity? Workplace experiences of Muslim
women in Australia”, in Asia Pacific Journal of Management, (2010), Vol. 27, No. 1,
pp. 115-137; see also G. Bouchard and C. Taylor: Building the future: A time for
reconciliation (Gouvernement du Québec, 2008); D. Schiek and V. Chege: European
Union non-discrimination law: comparative perspectives on multidimensional
equality law (London; New York, Routledge-Cavendish, 2009).
The European Union Agency for Fundamental Rights (FRA) - report.