Beyond Individual Complaints: The Advantages of Positive Duties on the State in Equality and Anti-Discrimination Law

Introduction

Traditionally, anti-discrimination law has relied on a complaints-led model to redress discrimination. This model requires the victim to identify an act of discrimination and take it to an adjudicatory body to attract a compensatory remedy. On the other hand, a competing emergent model for remedies is that of positive duties on the state to redress discrimination. Positive duties are proactive rather than reactive, aiming to identify and redress unlawful discrimination even if there has been no complaint by an individual victim. These duties can be disaggregated onto multiple actors. Individual statutes impose duties on specific actors to promote equality – for example, Section 19 of the POSH Act, 2013 has a list of duties to be followed by employers to create a gender-equal and safe workplace. There is a constitutional and statutory duty under the Rights of Persons with Disabilities Act, 2016, to ensure reasonable accommodation for persons with disabilities, which is a related form of a positive duty. Positive duties are thus preventative and promotional, requiring duty-holders to consider the impact on equality of new or established policies or legislation and to introduce measures that facilitate the entry of under-represented groups or adopt family-friendly measures.

In this blog piece, I will consider affirmative action and reasonable accommodation as two important expressions of the positive duty to promote equality. I will consider both direct and indirect discrimination as expressions of the traditional complaints-led model of anti-discrimination law. Scholarship has noted how, in general, a positive duty to promote equality is more advantageous than a complaints-led model. A positive duty requires the state to recognise structural discrimination by tracing its root causes and addressing the resulting social hierarchies and inequality. In contrast, a complaints-led model treats discrimination as an isolated incident and is triggered only when an individual brings a specific claim.

I will make three further arguments about the advantages of positive duties to promote equality: First, I argue that positive duties can enable the state to effectively recognise intersectionality; Second, I argue that positive duties allow for more structural transformation; Third, I argue that positive duties can help us move away from an individual idea of merit. I believe that these are conceptual advantages that positive duties offer, and I do not deal with the practical constraints of the same. I will use cases from India, the United States, the European Union, and South Africa for this analysis.

Accounting for Intersectionality

The actions that a state takes on its own to ensure equality can allow for a more nuanced consideration of intersectionality than a complaints-led model.

Within a complaints-led model, there may be inherent textual limitations to equality and non-discrimination clauses in the Constitutions or statutes of various jurisdictions that prevent claims of intersectional discrimination. For example, Article 15(1) of the Indian Constitution states that, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”  This has explicitly been interpreted to reject an intersectional construction of discrimination. In Air India v. Nergesh Meerza & Ors., the Supreme Court upheld the problematic concept of ‘sex-plus reasoning’, wherein if the discrimination occurred not just on the ground of sex, but was coupled with other considerations, it would not violate Article 15. The Court interpreted ‘on grounds only of’ as meaning discrimination only and only on the ground of sex. Although this case was read down by Justice DY Chandrachud in Navtej Singh Johar & Ors. v. Union of India, that was not the plurality opinion. This ‘sex-plus’ reasoning may permit even intersectional discrimination, as the discrimination would then not be only on the basis of one of the grounds.

In the United States (“US”) as well, intersectional discrimination claims have not fared well. Kimberle Crenshaw points to three such cases involving Black women in her seminal article on intersectionality: DeGraffenreid v General Motors, Moore v Hughes Helicopter, and Payne v Travenol. In DeGraffenreid, compound discrimination against Black women was dismissed by using white women to argue that there was no sex discrimination. In Moore, Black women were not considered similar enough to white women to bring about a general sex disparity claim. In Payne, Black women were considered too separate and distinct from Black men to be able to successfully bring a case of race discrimination. In all of these cases, it came down to the wording of S.703 of Title VII (Civil Rights Act of 1964)—it shall be unlawful for an employer to discriminate against any individual ‘because of such individual's race, colour, religion, sex, or national origin’. This does not neatly carve out a space for claims of intersectional discrimination, and there are further evidentiary challenges apart from the definitional issues. In general, a but for test or even a disparate impact claim may be hard to substantiate, as it may be difficult to map the exact link between intersecting identities and the discriminatory action. Especially if the group in question is an intersectional group (e.g., Black women), it may be easy for the defendant to argue that the discrimination was not based on identity because there are others belonging to one of those identities who have not been treated differently (e.g., Black men or white women).

In contrast, it is acknowledged that in a jurisdiction like South Africa, where discrimination claims are rooted in the text in a manner that allows for the consideration of more than one ground, a claim of intersectional discrimination can be successful. In Mahlangu v Minister of Labour, the Constitutional Court explicitly recognised that Section 9(3) of the Constitution captures claims of intersectional discrimination ‘on one or more grounds’. In that case, the Constitutional Court recognised that black women were more structurally likely to be domestic workers and excluding them from the definition of ‘employees’ under the Compensation for Occupational Injuries and Diseases Act, 1993, would render them vulnerable and prevent them from accessing the benefits of social security. The Court held that Black women as domestic workers experienced racism, sexism, gender inequality and class stratification, and were often forced to undertake more precarious work, which furthered structural and intersectional discrimination against them. While in this case, a complaints-led model allowed for a more expansive outcome, in jurisdictions where the governing laws do not textually support intersectional discrimination, it may be much harder to make either a direct or indirect discrimination claim.

On the other hand, when the State is proactively undertaking positive duties to promote equality, it would be in a better position both with respect to furthering goals of equality and with data to support well-informed policy decisions. In India, we have horizontal reservations which cut across the category of vertical reservations. For example, persons with disabilities have a certain percentage of reserved seats separately within the general category and within the SC/ST/OBC categories. These seats cut across the categories based on caste and provide for intersectional representation of persons with disabilities across caste groups. The same policy is applied for reservations, for women as well. These positive measures by the state are based on evidence and empirics, such as census data and other statistics through data collection. Each state also has different provisions for caste-based reservations, based on the demographics of that state, which allows for a nuanced consideration of intersectional identities.

These positive measures by the State are again subject to the limitation of the text of the legal structure in place. A country like the US would not be able to accommodate such explicit reservations, given that there is no constitutional mandate to provide for explicit affirmative action for disadvantaged groups. The success of positive measures is therefore also contingent on the legal infrastructure, which either permits or encourages the same.

Structural transformation

Affirmative action and reasonable accommodation allow for structural transformation of factors such as the built environment, and access to education and employment, whereas an individual complaints-led model usually results only in specific relief to the aggrieved petitioner without tackling systemic issues.

In the case of disability, we can see that a claim for reasonable accommodation requires the state to acknowledge that it is the social barriers that can compound the disadvantage and prevent a person with disabilities from being able to fully access all the opportunities and resources around them. Even litigation on this issue has mandated action in such a way that the built atmosphere and the conditions are transformed to enable persons with disabilities to function effectively.

In Vikash Kumar v. UPSC & Ors., the appellant had a form of disability known as dysgraphia (a learning disability affecting writing ability). The appellant challenged the decision of the government not to allot him a scribe in the civil services’ examination, because he did not meet the benchmark disability threshold under the Rights of Persons with Disabilities Act, 2016. The Supreme Court of India ruled in the appellant’s favour, holding that while the requirement of a benchmark disability is only to avail a reservation in education, reasonable accommodation should be provided to all candidates with disabilities, even if they do not meet the benchmark threshold. The Court reasoned, “the principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society”, clarifying that reasonable accommodation furthered equality. Reasonable accommodation, therefore, recognises that the barriers existing in society need to be transformed for individuals to achieve their full potential.

The Supreme Court did not limit this case to a specific case of discrimination against the appellant but also issued a direction to the state to frame guidelines to ensure the provision of a scribe to all candidates for whom their disability imposed a barrier to writing examinations. This resembles the call for positive action from the state that Sen and Nussbaum undertake, that in order for an individual to truly develop their capabilities, they need to have access to basic goods and resources from the state.

On the other hand, when there are litigations that mirror the model of direct discrimination on other grounds, the result tends to be narrow and limited. In Fag og Arbejde (FOA) on behalf of Kaltoft v Kommunernes Landsforening (KL), it was argued that the petitioner Mr. Kaltoft was discriminated against and dismissed from his employment unfairly as a childminder due to his obesity. The ECJ held that obesity cannot be considered strictly as a disability, but could qualify to attract the non-discrimination protection in EU Directive 2000/78, if such obesity hindered full and effective participation, or caused the worker discomfort. This followed previous holdings by the ECJ in cases such as HK Danmark about the definition of disability for the purpose of the Directive. In such a case, the immediate impact would only be felt by the petitioner and others in a similar position with respect to employment and termination. However, there was no clarification of a positive duty on the state to take any action to affect the achievement of equality. Similarly, in the case of Sonia Chacón Navas v Eurest Colectividades SA, the petitioner’s employment was terminated due to her sickness, a fact accepted by all parties. The petitioner argued that this was a case of unlawful disability-based discrimination. The ECtHR Grand Chamber held that sickness would not be included within the ground of disability in the EU Directive 2000/78. Even in this case, treating it as a case of direct discrimination would have only resulted in the petitioner either being compensated or reinstated to remedy the unlawful discrimination.

Thus, the aforementioned cases illustrate the limits of a complaints-based approach. However, approaching this case from a reasonable accommodation perspective would have placed an active duty on employers to accommodate employees with sickness and illness, which hindered their full and effective participation in the workplace. For example, an employee who has just suffered a heart attack may require being placed on tasks that do not require heavy physical exertion. Of course, this may require more training or accommodation, but it creates a positive obligation on the employers to create humane working conditions and enable effective participation in the workforce even for those with serious sickness and illness. In fact, the harsh conditions of employment themselves can create disability, injury, or illness in individuals. In India, this was recognised, and the remedies stemming from reasonable accommodation, therefore, are more structural, enabling a deep introspection into how working conditions affect employees and require the adoption of positive measures that allow them to contribute effectively.

Challenging the Constructedness of Merit

The measures that a state takes to promote equality recognise that an individual’s position in society is determined by several factors, including the way that society is structured, while a complaints-led model inherently reinforces the idea of individual merit and does not question the link between merit and structural advantages.

In India, reservations are not a poverty alleviation programme, but rather a recognition of historical discrimination and disadvantage, and a way to ensure diversity and representation of all groups in education and employment.  Affirmative action measures force the state to grapple with the historical injustices meted out to certain communities, and recognise the ways in which this has prohibited access to several resources and opportunities. This reasoning is also supported by the constitutional mandate to make special provisions for socially and educationally backward classes, women and children in Articles 14, 15, and 16 of the Constitution. The legislature has also created reservations for persons with disabilities, and the Supreme Court has ordered that reservations be made available to transgender persons as well.

In India, the Supreme Court has explicitly broken down the connection between alleged inefficiency or inferiority of those claiming reservations and the implications on a system of ‘meritocracy’. In BK Pavithra & Ors. v. Union of India & Ors., the Court upheld the validity of an Act that allowed for consequential seniority in promotions on the basis of reservation (if a reserved category employee is promoted earlier due to reservation, they will remain senior in the promoted post, even if a general category employee who was originally senior is promoted later). The Court engaged in a long discussion on the idea of merit, noting that the concept was not independent of certain selected values and parameters which have consciously created a hierarchical system of ranking. The Court held that, “[merit] rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration.” Thus, a meritorious candidate is not merely one who is talented or successful but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration. This intertwines merit with substantive equality and is responsive to patterns of disadvantage and representation.

On the other hand, any traditional complaints-led model of anti-discrimination law will always involve a focus on individual merit. Inherently, I submit that the nature of a direct discrimination complaint argues that a candidate who is as meritorious as the one who is the benchmark has not been given the opportunity in question only and only because of some aspect of their identity. In Price Waterhouse v. Hopkins, the Supreme Court of the United States held that when a plaintiff in a Title VII case proves that gender played a motivating part in an employment decision, the defendant can avoid liability only by showing that the same decision would have been made even if gender had not been taken into account. This assumes that in successful cases, the merit of the candidate is prima facie established, and the wrong here is that one’s gender identity wrongly interferes with their merit. This relies on a conception of formal equality and does not challenge the constructedness of merit or examine the way patterns of privilege and disadvantage are distributed in society.

Conclusion

In this essay, I have argued that positive duties of the state to promote equality, as compared to the traditional complaints-led model of anti-discrimination law, offer three advantages: accounting for intersectionality, enabling structural transformation, and challenging the notion of merit. While I have not gone into the practical constraints of positive duties in this paper, some of the disadvantages are that public austerity measures, a non-responsive state, and weak legal backing for affirmative action and reasonable accommodation may result in the state not being proactive and not taking its positive duties seriously. This may hinder the overall effectiveness of positive duties and the conceptual shift they can bring about to the legal idea of equality.

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This article has been authored by Jwalika Balaji, a Research Fellow at Vidhi Centre for Legal Policy. It is a part of RSRR's Excerpts from Experts Series.