Anti-discrimination laws were introduced on the assumption that society was in transition to a multicultural and multi-ethnic form, and that ‘intolerance’ would gradually disappear. It is now clear that the real issue is hostility between groups: discrimination is merely a symptom. Separation of hostile groups, and the creation of parallel societies, is a more appropriate response by the state.
Anti-discrimination laws in Europe typically prohibit discrimination by gender (sex), ethnic or national origin, political beliefs, religion, and more recently, sexual orientation. There is an important distinction here between constitutional protection and criminal law. Article 14 of the European Convention on Human Rights (ECHR) prohibits discrimination on grounds of “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Strictly speaking Article 14 prohibits discrimination only in the application of the ECHR itself, but national constitutions usually contain similar formulas. The term “other status” also allowed the extension of Article 14 to cover sexual orientation. Protocol 12 extends it to discrimination in any other “right set forth by law”, and also prohibits discrimination by “any public authority”.
None of these provisions apply to individual citizens. Constitutions bind the state, not the citizen, with rare exceptions. The European Court of Human Rights enforces the ECHR, but it only hears cases against states, and it is not a criminal court. Discrimination is not a crime under international criminal law.
What national criminal law does prohibit, is discrimination of individuals by other individuals, or by legal persons (associations or businesses), in certain circumstances. Civil law can also include anti-discrimination and/or equal treatment provisions. The prohibited grounds for discrimination are borrowed from the lists in constitutions and international treaties, although more specific. Article 14, for instance, speaks of ‘property’, ‘race’ and ‘birth’ but those now sound archaic. Some national anti-discrimination laws still speak of ‘race’, but more recent versions would use ‘ethnicity’ or ‘ethnic origin’. The Dutch equal treatment agency CRM lists the grounds for discrimination as region or belief system; political beliefs; race, nationality or ethnic origin; gender (including transgender); nationality; marital status; handicap and age. The UK Equality Act 2010 lists ‘protected characteristics’ as age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex, and sexual orientation.
These laws also apply to specific circumstances. Typically they cover employment, pay and conditions of work, housing (sale and rental), health care, education, and the provision of goods and services.
That means that most discrimination is not illegal and never has been. There are no laws telling you who to marry or what music to listen to, or compelling you to like certain people. Anti-discrimination laws are also asymmetric with respect to economic transactions. They don’t apply to the purchase of goods and services: if you hate Swedes, you don’t have to shop at IKEA.
An explicitly racist or homophobic individual, who does not run a business or own any property, is therefore unlikely to break such laws. Formal complaints handled by the Dutch CRM illustrate where discrimination occurs: 56% in employment, 21% in provision of goods and services, 10% in education, and 2% in the social security system. Another 10% were invalid, because the complainant was not in a protected category. The British Equality Advisory Service lists some typical cases at its website:
A disabled individual who was trying to update banking details through the use of an interpreter at his local high street bank.
An individual who has been victimised by a pub landlord because he has inferred that a member of his staff was acting unlawfully by racially abusing a fellow customer.
An individual who was unhappy about the way that the younger clientele at work treated him and spoke to him because he was an older person.
A Trans individual, who had transitioned from male to female, who worked for a security company and reapplied for a security pass only to discover that the process for renewing her pass had disclosed the fact she had undergone gender reassignment surgery.
A pregnant woman who was advised by a leading restaurant chain to breast feed her baby in the toilet and not in the restaurant as she was causing offence.
The Dutch CRM also deals with few ‘classic’ discrimination cases. Employers simply don’t seem to discriminate in explicit and open form. In one case, a temp agency made applicants fill out a checklist, including the statement “During my work I will not wear a headscarf or display any other form of religious expression”. They could have said ‘No Muslims’ but they didn’t. (It was ruled to be discrimination by religion anyway). Conversely, many CRM cases are about things which are formally ‘discrimination’, but not based on hostility to specific groups, such as employers attempts to get rid of pregnant women. Money is the motive.
Explicit and well-motivated classic discrimination cases, such as Christians who refuse services to gay couples, are apparently rare. These cases do get media coverage, because they reflect open conflict between groups. Even if cases are rare, anti-discrimination laws do block implementation of explicit hostility, and that is a bad thing because they don’t make the hostility itself disappear. Anti-discrimination laws also prevent structural workplace segregation, which is necessary to protect vulnerable groups and prevent workplace violence and harassment.
The enforcement of existing anti-discrimination laws, and equal-treatment cases in courts and tribunals, are not a good guide to the underlying issues. The problem is that individuals want to harm other individuals, who belong to other groups. Discrimination is in many cases absent anyway, since there is no opportunity to discriminate. A white racist might hate black people, but if he is not an employer he can not refuse them a job, and if he does not own any housing, he can not refuse them as tenants. So officially there may be no case to apply anti-discrimination laws, but that won’t make the hostility disappear. It will probably find some other outlet.
The real question is whether the state ought to force mutually hostile groups into proximity – at work, in housing, in shops, or in leisure activity. The assumption behind typical anti-discrimination laws is that proximity is beneficial, and will lead to tolerance. That aspiration seems to have failed definitively in Europe, so it is time to re-assess the anti-discrimination laws themselves.