Current Pitfalls of Addressing Intersectional Discrimination in the Workplace in EU Law: Hope for the Future?

The EU’s current approach to – specifically, the CJEU’s interpretation of – intersectional discrimination in the workplace leaves something to be desired for. However, the newly adopted Pay Transparency Directive (Directive 2023/970) is the first piece of EU legislation that makes explicit reference to this legal issue, and thus indicates a potential change in the EU legal landscape. This post aims to provide a critique of the Court of Justice’s restrictive approach to intersectional discrimination claims thus far, and discuss the potential of the Pay Transparency Directive in this field.

Individuals may suffer discrimination on several grounds. For example, an individual from a particular ethnic origin who has a disability may suffer from racial discrimination, on one occasion, and may also experience discriminatory treatment based on their disability, on another occasion. This is known as sequential, multiple discrimination. Furthermore, ‘additive’ or ‘compound’ discrimination refers to discrimination where a person is discriminated against in several ways but on the same occasion. This is true, for example, for sexual orientation and gender, which cannot necessarily be disentangled; namely, where a gay woman suffers from discrimination as a result of both being a woman and being gay. At the moment, it is much easier to deal with sequential forms of discrimination, because each ground can be dealt with in isolation by the CJEU. Thus far, however, the Court remains reluctant to interpret ‘compound’ or intersectional forms of discrimination.

Binding secondary EU legislation on non-discrimination is divided into three Directives: one on race and ethnic origin, one on religion or belief, disability, age or sexual orientation, and one on gender discrimination. All cover different material scopes and separate different grounds of discrimination that can nevertheless also occur in a compound manner (e.g., gender and sexual orientation, or gender and ethnic origin):

1)    The Racial Equality Directive (Council Directive 2000/43/EC) provides protection against discrimination based on race or ethnic origin in employment and vocational training, including access to goods and services.

2)    The Equality Directive (Framework Directive 2000/78/EC), provides for the principle of equal treatment in employment and occupation, using an equivalent definition of ‘multiple discrimination’ (Recital 3) as in the Race Equality Directive (Recital 14). Differing levels of justifications and exceptions are permitted. In the Framework Directive, specific exceptions of discrimination on grounds of age and disability are highlighted (see Article 6). This is based on a legitimate aim, emphasising ‘age’ as distinct from other non-discrimination grounds. Due to selected justifications for discrimination against certain characteristics such as age, this poses difficulties when an individual may suffer from other grounds of discrimination (for instance, gender and ethnicity). This creates a hierarchy of what may be deemed justified or not, creating larger gaps when multiple grounds of discrimination are invoked.

3)    The Equal Treatment Directive (Directive 2006/54/EC) addresses the equal treatment of men and women with regard to: access to employment, equal pay, and occupational social security schemes, making reference to prohibitions of direct and indirect sex discrimination (with exceptions permitted).

None of the Directives that are currently in place make any explicit reference to intersectional or compound forms of discrimination.

The Court of Justice’s restrictive approach to intersectional discrimination claims

In the Court’s current approach to intersectional discrimination, it seems to grapple with the complexity of addressing intersectional grounds as individually separate claims. This is notable in the 2016 case  Parris v. Trinity College Dublin and Others, which invites discussion on the CJEU’s lacking intersectional approach to discrimination. The applicant, David Parris, had been living together with his same-sex partner for over 30 years. He worked as a lecturer at Trinity College Dublin, in Ireland. As part of his employment, he was a member of a pension scheme operated by the university. Rule 5 of the pension scheme provided that, upon retirement, a civil partner was entitled to a certain pension for life of the member (judgment, para. 17). This was payable only to the spouse or civil partner of the deceased beneficiary where such a marriage or civil partnership had been entered into before reaching the age of 60 (para. 17). More concretely, in the event of Mr. Parris’ death, his partner would not be able to benefit from Parris’ pension scheme as they did not enter a civil partnership before he turned 60. The national rule in Ireland, at the time, barred same-sex partners from contracting civil partnerships (para. 14). The case thus provided the possibility of an intersectional approach when addressing age and sexual orientation discrimination claims. When the case landed before the Irish Labour Court, it referred the question to the CJEU whether the pension scheme rule was discriminatory (para. 31) on the separate grounds of sexual orientation and age, or whether the combined effect of age and sexual orientation could also be deemed discriminatory (Articles 2 and 6(2) Directive 2000/78/EC).

How did the CJEU interpret the combined effect of sexual orientation and age discrimination? In Parris, it stated that discrimination could not result from a combination of grounds when no discrimination was found on the basis of each ground taken in isolation. Specifically, no ‘new category of discrimination’ could be found to exist where the basis of such grounds taken in isolation could not be established (para. 80). This presupposes the idea that discrimination grounds can only be recognised in a singular way, and if age and sexual orientation, assessed separately, cannot be established, then a combination of the two, although in theory probable, is practically untenable. 

The result of this case shows the CJEU’s fallibility when adopting an intersectional approach to discrimination cases. The potential to assess the ‘combined effects’ of age and sexual orientation could have paved the way in establishing an intersectional analysis of such grounds when dealing with Parris’ case. The Court disregards the experience of discrimination faced by older, gay men, who suffer from the combined disadvantage resulting from a survivor’s pension rule. Such a lack of recognition by the Court signifies an inertia of the Court as the pension scheme rule impacted older same-sex couples. It can be said that the mistake of the Court lies in its single-ground analyses, where instead it would have been more beneficial (in inching closer to an intersectional approach) if age and sexual orientation were dealt with in a more expansive manner with limited exceptions, rather than being interpreted narrowly and rigidly.

The CJEU has not adopted an intersectional lens to discrimination law thus far, limiting claimants to isolated grounds of discrimination. This single-ground approach evidently adopted by the CJEU in Parris also undermines the core values enshrined in Article 2 TEU on the prohibition of discrimination.

The Pay Transparency Directive: a new direction?

Hopes of addressing and identifying the intersectionality of protected non-discrimination grounds and thus recognising and protecting against intersectional discrimination can be found in the recently adopted Directive 2023/970, known as the Pay Transparency Directive. This Directive sketches out new rules on pay transparency in the EU, in helping to bridge the pay gap between men and women in line with the right to equal pay enshrined in Article 157 TFEU.  The EU legislature adopted this Directive in March 2023, giving Member States three years to transpose it into national legislation (until 2026). This Directive establishes rules access to information, making it mandatory for employers to inform jobseekers about their starting salary and pay range, whereby workers will be entitled to ask their employers for information on average pay levels broken down by sex, for instance (Article 7). In addition, this Directive includes a reporting obligation, whereby companies with more than 250 employees will be mandated to report annually on the gender pay gap in their organisation (Article 9).

Most notably for the purposes of this post, is the explicit mention of intersectional discrimination, which has been included in the scope of this new Directive, especially in highlighting pay transparency when addressing gender-based pay gaps. Groundbreakingly so, it is the first piece of EU legislation that explicitly addresses intersectional discrimination, even if within the confines of gender pay discrimination. In the Directive, this is first seen in Recital 25 of its Preamble. Intersectionality is highlighted when discrimination based on sex is combined with other forms discrimination, i.e., ‘where the worker is a member of one or several groups protected against discrimination’ on the grounds of sex and other characteristics. Recital 25 additionally highlights the certain groups of persons who may face intersectional discrimination, such as women with disabilities, elderly women, and women from ethnic origins, such as Roma women. Most notably however, Recital 25 encourages national courts to take positive action in ensuring that ‘any situation of disadvantage arising from intersectional discrimination’ is taken into account when assessing remedies.

A key provision of the Directive is Article 3(2)(e), explicitly defining intersectional discrimination as discrimination based on a ‘combination of sex and any other ground or grounds of discrimination’ protected in other Directives (i.e., the Racial Equality Directive 2000/43/EC and the Equality Directive 2000/78/EC). The current Equality Directives, despite their limited scopes and grounds of discrimination that are protected, thus serve as building blocks for this Directive under discussion. Article 16(3) provides for compensation mechanisms for workers who have sustained damage, including full recovery for damage caused by intersectional discrimination. In Article 23, which addresses penalties for infringements relating to equal pay, section (3) refers to intersectional discrimination as a relevant aggravating or mitigating factor. It is evident that the Pay Transparency Directive offers an established set of compensatory mechanisms to protect victims experiencing intersectional discrimination, and, most importantly, that such forms of discrimination are recognised in the Directive as inter-linking and inseparable. Finally, in Article 29(3)(a), which relates to the monitoring bodies that should be set up by Member States, it is encouraged that monitoring bodies raise awareness among public and private bodies and the social partners by openly addressing intersectional discrimination.

Overall, this Directive should not go unnoticed, as it offers hope in removing obstacles for workers to exercise their rights to non-discrimination in the EU. In providing a much needed and updated approach to discrimination with the mentioning of intersecting grounds of discrimination, the Pay Transparency Directive paves the path for workers suffering from differences in treatment when it comes to the gender pay gap. This should allow individuals experiencing intersectional discrimination at work (resulting in, e.g., unequal pay for the same position) the ability to seek redress through EU law. Given that the grounds of protected characteristics are now unified in this Directive, this could hopefully also bridge the gap between non-discrimination law in the EU and the Court’s approach, allowing for re-direction and the recognition that the protected characteristics individuals are entitled to claim will, for a large proportion of workers, inevitably interrelate.

It should be noted here, however, that the scope of the Pay Transparency Directive remains limited to solely addressing the gender pay gap. Instances of combined discrimination as in the Parris judgment analysed in this post, did not concern issues of equal work of equal value but rather the deprivation of a pension scheme due to age and sexual orientation. Even with the Pay Transparency Directive in place, this case would not have been covered by its rather limited material scope. Despite this, the legislature’s inclusive approach adopted in the Pay Transparency Directive in explicitly addressing and recognising also intersectional forms of discrimination experienced in the workplace is a step in the right direction, leading to positive change for individuals seeking redress in the workplace.

Melina Pullin is currently pursuing her master's in International and Comparative Law at Trinity College Dublin. She did her bachelor's in European Law at Maastricht University. Her current research interests lie in EU anti-discrimination law, employment law and general public international law.