eithne mclaughlin romana khaoury marguerite cassin

Eithne McLaughlinRomana KhaouryMarguerite Cassin

Equality and Social Inclusion in Ireland Project

Project Co-ordinator: E McLaughlin, Queen’s University Belfast

Complex forms of discrimination : an assessment of the development and potential application of definitions of

institutional and systemic discrimination

• communicate and thin out Sociology of Inequality understandings of maintenance and recreation of inequality and privilege

•Assess the potential for transfer of sociological definitions to equality law

• respond to lack of development of concepts of discrimination in national and international law

• prompted by limitations of current anti-discrimination law and practice and persistence of group inequalities (especially ethnicity)



Objectives

• simple discrimination = one to one action intended to have adverse impact on another because of their possession of certain social traits + hate crimes

• complex forms of discrimination = diffuse, implicit, collective patterns in and of social practices and their associated worldviews which exclude, devalue or disadvantage minority group individuals • difference is ignored when it is relevant or invoked when it is irrelevant



Working Definition of Complex Forms of Discrimination

• limitations of current unlawful discrimination approach and options for reform (EM)

• problematic status of indirect discrimination (EM)

• reasons for development and application of definitions of complex forms of discrimination )EM)

•knowledge transfer to law and policy applications?

•the evolution of definitions of complex forms of discrimination in sociology over the last 50 years (RK)



Structure of the paper

• remedies against complex forms of discrimination? Or just prohibition ? Impact on definition and invocation of indirect discrimination

• limitations of current anti-discrimination UK and European model

• objectives of ‘equality regime’ reform

• complex forms of discrimination and othering us and them; insiders and outsiders



3 Options for reforming the UK’s equality regime

• limited achievement of the negative anti-discrimination equality model• concept of indirect discrimination limited by conservative judicial application and sparsity of cases• scope of definitions of unlawful discrimination small - relative to universe of discriminatory behaviours and processes (problem of scope)• possibility prohibition on direct discrimination shunted discriminatory processes and practices from its sphere to indirect and other complex forms of discrimination, that of (problem of compliance avoidance)



9 reasons for an interest in complex forms of discrimination

• add force to indirect discrimination• bridge between negative and positive models and measures•development required to maintain relevance utility and scope of definitions• plaintiffs in more complex circumstances and with multiple ‘identities’



Reasons contd

•limitation of post hoc redress for unlawful discrimination as driver of social change



Problem of responsiveness

• too big a stretch?• better to name and define exclusionary processes in their own right



Why not develop additional definitions of discrimination?

• irrelevance of labour law to majority of minority group individuals



Problem of entry and relevance

Complex discrimination recognised as indirect discrimination:

• Apparently unbiased universal standards create adverse impact and disadvantage by ignoring a social difference when it should be taken into account for justice and fairness or the converse•harassment, bullying and victimisation• prima facie evidence = persistent patterns of minority group under presentation and disadvantage



Evil motive effects discrimination

• positive equality model combines –ve and +ve equality duties on public sector; -ve on private; reliance on mainstreaming technologies; + social minimum or social rights• improved use and application of indirect discrimination provision. Definitions and remedies for additional forms of complex discrimination and why to take reasonable steps to progressively reduce….• affirmative action in market sphere• Social minimum, social rights



Equality law reform paths

• acquisition of personal human capital; access to fringe benefits• public expressions of respect, credit and recognition



Complex forms of discrimination manipulate reward and penalty

subsystems within organisations:

• social moral paternalism• relocation of dysfunctionality ‘the problem’ from Us to Them – i.e. away from structures and persons of power



Genericism and specificity in (in)equality

• defining us and them• insiders and outsiders• differential thresholds for reward and punishment and satisfaction• the double standard• insurrection• destruction of ‘corridor reputations’ focused on personalities, integrity and judgement• higher levels of performance required generally



Practices of othering and exclusion

• The behaviours and practices called systemic and institutional discrimination have been identified and documented in the social research literature for 50 years• ? Knowledge transfer? Definitions fit for purpose? Can they travel?



Are definitions context dependent i.e. capacity for transfer between spheres?Judgement of adequacy of concepts and definitions should be against purpose?



contd

• achieve equality of opportunity• achieve real equality of opportunity• achieve reduction in inequalities• elimination of discrimination• elimination of unlawful discrimination



Objectives of reform

• diffuseness problematic for ‘freeze frame’ law

•diffuse in time and space i.e. shared worldviews and norms e.g. cultures in which invokation and exaggeration of group difference create devaluation and disadvantage

• non-recognition in law, part of the denial of persistent inequalities

• denial needed because not attributable to dysfunctionality in the minority group

• challenge to the bad apple thesis



Diffuseness, Agency

• direct vs indirect• past in present vs side effect• individual vs systemic• structural vs systemic



The development of concepts of complex forms of discrimination and prejudice

Gynther’s system pervading patterns [which] exclude, disadvantage or devalue members of minority groups which can be legally identified and protected (Gynther, 2003, p.50)



• principle of accumulation• relationship between inequalities of condition and individual capabilities for competing and winning opportunities



Myrdal (1944) An American dilemma

• institutional racism interlocking and cumulative – internal colonialsim• institution? Bounded organisation or a social system/ structure?



Stokey, Carmichael and Hamilton (1967) Black Power

• conformity sufficient for inequality to be recreated • conformity sin of omission = sin of commission?



Knowles and Prewitt (1967)

“ Once a colonial system is established historically, those in the superior position seek to monopolise basic resources. In this process, privilege becomes institutionalised, that is, it becomes imbedded in the norms (regulations and informal rules) in a variety of social, economic and political organisations” (Knowles & Prewitt, 1978, p.213)



Complex discrimination = omission = (?) commission

• interest theory of discrimination• internal colonialism• institutional racism• 4 category framework of complex discrimination



Feagin and Feagin (1978)

(1)isolating discrimination (2)small group discrimination (3) direct institutionalised

discrimination(4)indirect institutionalised

discrimination



• intentionally benevolent• unintentionally benevolent• Unintentional institutional discrimination= unintended adverse impact on minorities of anonymous processes such as inflation, economic cycles, fiscal systems, the social infrastructure etc



Robert (1988)

• Like Pincus (1999) restrict ‘structural’ to social systems involving multiple institutions e.g. the educational system and hig level policies



Restrict ‘institutional’ to bounded organisations i.e. an institution e.g. a

hospital, a school, a system

• Systemic racism and discrimination rooted in:•Ethnic, equality and migration policies• Management of Us and Them of internal and external difference, political, physical and social boundaries• Minimisation and invisibility of difference (voluntary and involuntary)



The Unholy Trinity

• collective vs individual • within 1 institution or across multiple i.e. a system •Cultural or structural



Axes which define complex discrimination



The Discrimination Onion

Definitions of discrimination: Direct discrimination: discriminatory behaviour which intentionally has adverse impacts for minority group individuals +Hate crimes: intentionally discriminatory interpersonal behaviours which are expressed through verbally, emotionally or physically abusive behavioursIndirect discrimination: the creation of adverse impacts and disadvanatages within organisation and institutions through the actions of individuals or groups of individuals applying ostensibly unbiased rules and universal standards to unequal situations (that is ignoring a social group differences when it is in fact relevant to the achievement of equality of opportunity



Institutional discrimination: the creation of adverse impacts and disadvantages within organisations and institutions through the application of ostensibly unbiased rules and pre-existing differences of condition, preference and culture

Systemic discrimination: ‘whole society’ discrimination, disadvantage and social exclusion: the creation of adverse impacts and disadvantages through any or all forms of discrimination in a number of social fields and multiple institutions. These impacts are likely to reinforce each other and be cumulative in effect on the individual and their group.



Systemic discrimination permeates the historical record of minority-majority relations and statuses; religious beliefs, social practices and public policy (Humpage, 2001)



•Benevolence/Affirmative Action?



Lack of consensus on:The Problem of Intent?

Institutional discrimination = systemic discrimination



Structures systems & Institutions

• institutional racism = bundle of individual attitudes and uncritical self-evaluation at organisational level.• Hesse (2004) McPherson is a denial of institutional racism



McPherson Report

• 4 preconditions for equality • (1) rights (2) recognition; (3) representation • Equal citizenship = absence of complex forms of discrimination in Pavi’s 4 pre-conditions



Pavi ()

• Depiction of Northern Ireland as 2 warring native tribes – invisibility of other ethnicities

• Northern Ireland society = systemic discrimination



Northern Ireland Case

Recognition of systemic and institutional discrimination is a necessary step en route to the realization of fair or meaningful equality of opportunity (Baker et al, 2004) and to the reduction of unfair inequalities of condition and their inscriptions on the bodies & spirits of the children of the oppressed.



eithne mclaughlin romana khaoury marguerite cassin

Documents

concepts of discrimination

indirect discrimination

social inclusion

social practices

equality law

evolution of definitions

international law

uks equality regime