Dr. Karla Perez Portilla, Lecturer in Law, reflects on existing legal and policy tools that can help understand and address longstanding inequalities made evident and exacerbated in the context of the pandemic.
Responding to systemic discrimination using an intersectional approach: ideas to meet the disparate impacts of Covid-19
A blatant issue made clearer during the pandemic has been that inequality is systemic; often institutional, and that it hits harder those already living in the hardest conditions including BAME people.
One legal tool that can help bring, what are disparate and complex impacts, to legal and policy light is the concept of intersectionality as coined by Kimberle Crenshaw. This concept urges us to understand that access to and enjoyment of, goods, employment, education, health services, etc. can be hindered by existing discrimination against people because of more than one of their characteristics.
For example, a company may deny it discriminates against Black women because it indeed hires Black people and women. However, the Black people they hire may only be men; and the women may only be white women. The exclusion of Black women would be and often is intersectional discrimination. The concept reveals the situation of a group that falls through the cracks of legal protection (DeGraffenreid v General 1976).
This form of injustice can happen and be exacerbated in the context of Covid-19. For example, an establishment may make employees redundant following the common criterion of “last in, first out”. If Black women only started being hired over the past few years, as a result of enlightened policy and procedure changes, they will likely be the first to go.
Section 14 of the Equality Act 2010 includes the concept of combined discrimination: dual characteristics, a limited version of what the Labour government of the day originally wanted. Dual discrimination is a concept that could have legally recognised the concept of intersectionality, albeit in a limited sense, and made it justiciable.
Section 14, however, has not been taken forward by the current UK government. Whilst this in practice does not prevent courts from taking dual discrimination into account (Ministry of Defence v DeBique – race and sex discrimination), its use has been erratic and unreliable (O’Reilly v BBC – age and sex discrimination). Intersectional discrimination is still not formally recognised in law; we rely on tackling discrimination against people with protected characteristics in silo, which is simpler, but often ineffective.
Crenshaw coined the term intersectionality in the 80s. It evokes an issue that has been known (and largely ignored) for decades. The term is now buzz but its legal recognition is shy. From a Scottish legal perspective, whilst it is not possible to amend the Equality Act 2010, it is possible to embed the concept into policy, and mainstream the understanding that experiences of disadvantage are complex but identifiable.
Patterns are visible and reflect both, systemic inequalities and instances of institutional discrimination. It could be made a duty for public authorities to identify, tackle, and prevent intersectional discrimination. More so is the case given the current concern about BAME peoples’ health inequalities, and the occupational risks of those working for the NHS, care services, transport, etc.
Adopting an intersectional approach fits within the existing Scottish Parliament’s responsibilities. The Scotland Act 1998 gives the Scottish Parliament power to encourage equal opportunities. Moreover, it also has the power to impose duties on Scottish public authorities and cross-border public bodies operating in Scotland. Equal opportunities are defined in the Act as:
“the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions.”
The list of characteristics is broader than the list of protected characteristics included in the Equality Act 2010 and thus potentially allows for a wider intersectional approach.
Moreover, Scottish Public Authorities are subject to the Public Sector Equality Duty (PSED, Equality Act 2010, s. 149) and Scottish Ministers have powers to impose specific equality duties. This is done through regulations intended to enable the better performance of the “general duty” which includes, due regard to the need to: eliminate unlawful discrimination, advance equality of opportunity and foster good relations.
Crucially, the PSED is the result of an acknowledgement that discrimination in the form of racism, homophobia, etc. can be institutional/ institutionalised as opposed to the result of isolated individuals’ actions and behaviours.
This understanding was not spontaneous, it emerged from the Macpherson Inquiry into the racist murder of Stephen Lawrence in 1993. The Inquiry’s Report defined institutional racism as:
“The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic or national origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people”.
This definition, the findings, and the recommendations of the Inquiry should be a reference point in the context of Covid-19, particularly as calls mount for a public inquiry into the UK BAME Covid-19 death rate.
More than 20 years ago, not only did the Macpherson Inquiry reveal the need for preventive measures like those of the PSED; it also made clear that institutional racism extended beyond the Metropolitan Police Services. The Report held it was incumbent upon every institution to examine their policies and practices to guard against disadvantaging any section of our communities.
An intersectional approach enabled as part of the PSED could thus be a start in effectively working against discrimination in a way that responds to systemic discrimination including its institutional ramifications.
 Discrimination as a multidimensional issue that is maintained at structural, cultural, institutional and personal levels is explored in Perez Portilla, Karla (2017) Redressing everyday discrimination. The weakness and potential of anti-discrimination law, Chapter 3, Routledge GlassHouse, pp. 61 and ss.
 Crenshaw, Kimberle, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” University of Chicago Legal Forum: Vol. 1989: Iss. 1, Article 8. Available at: http://chicagounbound.uchicago.edu/uclf/vol1989/iss1/8
 DeGraffenreid v General Motors, 413 F Supp. 142, 145 (E.D. Mo. 1976).
 Ministry of Defence v DeBique  I.R.L.R. 471 EAT.
 O’Reilly v BBC & Anor 2200423/2010 (ET).
 Contrary to s. 14, intersectionality is not reduced to direct discrimination and there may be discrimination because of more than two ‘protected’ or other identifiable characteristics.
 Intersectionality is mentioned once without elaboration in the UK Government’s Inclusive by Instinct, Diversity and Inclusion Strategy 2018-2015. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/739538/Diversity_and_Inclusion_strategy_SCREEN.pdf (22.05.20).
 Socio-economic background is a notably absent ground. The protected characteristics in the Equality Act 2010 are: race, sex, marriage and civil partnership, pregnancy and maternity, gender reassignment, sexual orientation, religion or belief and age.
 Home Office (1999), “Report of the Macpherson Inquiry” Cm. 4262-I, 24 February, at 6.34.
 Campbell, Denis et al (2020) “Calls mount for a public inquiry into UK BAME Covid-19 death rate”, The Guardian, 2 Jun. Available at https://www.theguardian.com/world/2020/jun/02/calls-mount-for-public-inquiry-into-uk-bame-covid-19-death-rate (03.06.20).
 Home Office (1999), “Report of the Macpherson Inquiry” Cm. 4262-I, 24 February at 46.27. The emphasis is mine.