Human rights experts reveal how we could reform equality law to make sure it protects the most vulnerable in times of crisis.

This is Episode Three of a four-part series. The series takes a deep dive into whether equality law is cut out to protect the most vulnerable in times of crisis, and if not, then why not and what can we do about it?

This podcast series is part of the Exponential Inequalities project, led by Shreya Atrey as the Principal Investigator of the British Academy Leverhulme Small Research Grant on Equality Law in Times of Crisis.

Producer, Presenter, Sound Editor: Christy Callaway-Gale
Executive Producers: Shreya Atrey, Meghan Campbell, Sandra Fredman
Assistant Producers: Mónica Arango Olaya, Gauri Pillai, Natasha Holcroft-Emmess
Transcript and show notes: Sarah Dobbie

TRANSCRIPT:

EPISODE 3: ‘…Plug those gaps’: Reforms to Equality Law

Helena Alviar (0:02)

Only a constitutional reform is not enough to guarantee equality.

Beth Gaze (0:08)

We need to move beyond the individualised focus of anti-discrimination law.

Christy Callaway-Gale (0:16) 

You’re listening to RightsUp, a podcast from the Oxford Human Rights Hub. I’m Christy, Podcast Producer at the Oxford Human Rights Hub, and in collaboration with Shreya Atrey, Associate Professor in International Human Rights Law at the University of Oxford, we’re putting together a special four-part series on “Equality Law in Times of Crisis”.

Christy Callaway-Gale (0:44) 

In Episode 2, we looked at whether equality law and equality-related legislations and policies are set up to tackle exponential inequalities during crises. The picture was, perhaps inevitably, mixed, and it became clear that equality law legislations and policies can’t be severed from the context of the society in which they’re operating. With all of this in mind, now I want to know how we could reform equality law so it can better respond to exponential inequalities during crises.

Christy Callaway-Gale (1:19) 

Let’s begin this third episode where we started Episode 2, by thinking about the UK Equality Act 2010. You might remember we spoke about the anticipatory or ex-ante approach to reasonable accommodation, which puts the responsibility on service providers and public bodies to think in advance about accessibility and take reasonable steps to make sure disabled people aren’t at a disadvantage.

Anna Lawson (1:46) 

And that contrasts with the more well-known reactive or ex-post reasonable adjustments duty that operates in the employment context, which only­– it’s only triggered– only– the duty is only activated when a disabled person encounters a disadvantage.

Christy Callaway-Gale (2:08) 

Anna Lawson is Professor of Law at the University of Leeds and Joint Director of the Multidisciplinary Centre for Disability Studies.[1]

Anna Lawson (2:16) 

So, it’s only from that point that the employer has a duty to make changes, subject to reasonableness, to solve the problem. So, that, in an emergency context, was much more limited, I think, and there weren’t– there wasn’t so much evidence of cases coming forward on that– on that– relying on that duty.

Christy Callaway-Gale (2:39) 

So, if this reactive approach doesn’t put the onus on education providers and employers to foresee disadvantage, and doesn’t seem to be serving people when they need it during crises, should we just do away with this reactive approach and make everything anticipatory? Lisa Waddington, Professor of European Disability Law at Maastricht University in the Netherlands.[2]

Lisa Waddington (3:01) 

Now, the anticipatory or the ex-ante approach to reasonable adjustment can certainly do a lot of the heavy lifting — it can take care of the most common and foreseeable needs of disabled people through– through the provision of accessibility and so on. But there will still be the needs of some individuals who– which are not met through the– this forward planning, this anticipatory planning of duty bearers, and therefore there would still remain a need for a reactive or ex-post adjustment duty.

Christy Callaway-Gale (3:42) 

So, we still need the reactive approach. But Lisa Waddington goes on to tell us why it would be valuable to adopt the anticipatory approach in employment and education contexts too. Remember, it is in these contexts that the anticipatory approach doesn’t currently apply.

Lisa Waddington (4:00)

So, for example, a private sector employer might be purchasing a new computer system or a new intranet, and because at that time the employer doesn’t have any disabled staff, they purchase a system without taking– taking account of the needs of future employees with disabilities. And that’s perfectly possible because there’s not an anticipatory duty to consider the needs of persons with disabilities, an anticipatory reasonable adjustment duty. One year later, a person with a disability applies to work at that employer and they find that this computer system isn’t compatible with them, and then it’s going to be too late, probably, to make the– to make the changes (because the system was so expensive in the first place) and that means that that person, that disabled person, is then excluded from that employment opportunity. So, there’s definitely a lot of benefit of having an anticipatory, an ex-ante approach also with regard to employment and education, and not just with regard to service providers.

Christy Callaway-Gale (5:05) 

In fact, Lisa tells us how, when the Disability Rights Commission did a consultation on the Equality Act, the Commission proposed just this — they said that the reasonable accommodation duty across the Act should be both anticipatory and reactive, and that this should apply to employers and education providers, not just service providers. The legislator, however, only included the dual approach for service providers.

Christy Callaway-Gale (5:34) 

So, even when there are clear, informed recommendations, it’s not so simple as merely making the change and implementing it. Another human rights expert that we spoke to argues there may also be other barriers outside of constitutional provisions and laws that prevent rights from being enforced. Helena Alviar is Professor at Sciences Po Law School in Paris,[3] studying the equality clause in the Colombian Constitution. She was previously Dean at the University of Los Andes School of Law in Colombia.

Helena Alviar (6:04) 

Only a constitutional reform is not enough to guarantee equality. Constitutional provisions have to be followed through laws, and laws have to be followed with robust institutions that set forth, you know, what are the tools to make this equality promise possible. So, robust institutions, but also public investment and public spending in complex and profound understanding of, “Where are the causes of inequality?”

Christy Callaway-Gale (6:42) 

In fact, Helena says there are plenty of laws in Colombia with equality clauses and that focusing on reforms to laws may not be the right approach in this context.

Helena Alviar (6:52) 

So, the issue is not that there are not enough laws — actually, there are quite a few. But the issue is, what are these– what do these laws do? And what these laws do, mostly, is reiterate. So, they repeat the idea that, for example, there should be equal pay for equal– for an equal job, so that men and women should earn the same. But actually, if you repeat the term “equality”, you’re not necessarily dealing with other laws that influence the possibilities that this equality promise is going to have. So, the example I look in depth into is the fact that even though there is the equality clause in many laws, when you take ideas about economic development, the ideas about economic development in the country have actually concentrated on sectors that employ men mostly. And so, what I’m trying to say is that in economic development policies, that are geared in this particular way, actually, they have almost no effect on you know, women’s employment, women’s access to a jobs, etc.

Christy Callaway-Gale (8:13) 

So, now we’re starting to expand our viewpoint, looking beyond equality laws. And this raises the question of when we want the courts and the law to get involved and when we don’t. This is a question that has arisen in many of our conversations with human rights experts from across the globe, including with Cathi Albertyn, Professor of Law at the University of Witwatersrand in Johannesburg, South Africa.[4]

Cathi Albertyn (8:37) 

And I think the fact that the pandemic really exposed the economic inequalities of our society, and really pivoted the attention of social justice lawyers even more towards economic inequalities, it began to show us, if you like, the places– it began to show us where we could develop equality law, towards more transformative long-term possibilities in terms of dealing with economic inequalities. But it also, I think, very clearly showed us where the kind of barriers and limitations would be in doing that, and what it is we can expect courts and judges to do, and what it is that we really don’t want them to do at all.

Cathi Albertyn (9:26) 

Equality law in relation to social provision in South Africa is only effective when there is some social provision in place, right. So, you do need government to act, to allocate social grants, and in this case, to act to allocate the Social Relief of Distress Grant. Once it had allocated the Social Relief of Distress Grant, equality law allows you to say, “Well, how comprehensive is its coverage? Are there groups defined by prohibited grounds, such as race, and gender, nationality [etc.], who have been excluded from coverage? And if so, can we use equality law to plug those gaps?”

Christy Callaway-Gale (10:11) 

Cathi tells us that equality law in South Africa did indeed manage to plug one such gap in the Social Relief of Distress Grant, which initially left out asylum-seekers. It was brought on an urgent basis to court and the judge ruled that excluding asylum-seekers amounted to discrimination. But, according to Cathi, there are still limits to the role the courts can and should play.

Cathi Albertyn (10:34) 

And those boundaries really are questions now of– we’re entering the field of budgetary allocation and economic decision-making. And that’s clearly a case where courts have a very limited role to play. But I think what courts do well, and there is now emerging precedent in South Africa in non-pandemic related cases, is that courts can require what I call “constitutional accounting” or “constitutional accountability”. So, they can, at least, ask government to account for their economic choices, and make sure that those economic choices are in line with the aspirations of our Constitution, which are aspirations to overcome disadvantage and to advance social justice.

Christy Callaway-Gale (11:27) 

There are other recommendations emerging from interviews we did with human rights experts about how the Constitution can provide a check on government action. This only holds, though, if constitutional protections have been strengthened to allow them to play this vital role. We spoke to Aleta Sprague about this. Aleta is Senior Legal Analyst at the World Policy Analysis Centre,[5] and she is part of a team studying constitutional approaches to protecting workers rights in 193 countries.

Aleta Sprague (11:58) 

One piece that we try to highlight is that having these protections strongly in place in constitutions before a crisis occurs can help ensure that governments’ responses to the crisis remain consistent with fundamental human rights and don’t neglect the needs or unique threats faced by marginalised groups. So, one example of this that we elevate in the chapter is a case from Malawi in which the High Court ruled during the first lockdown that the government could not impose a national lockdown without first putting in place adequate social security measures for marginalised groups and people in poverty.[6] It’s a really powerful decision, and this decision was based on a number of constitutional rights and protections, including the right to life, the right to livelihood, and a directive principle on basic needs. And looking at all these pieces together, the Court determined that the Constitution implicitly protects the right to Social Security.

Christy Callaway-Gale (13:03) 

And constitutional protections can help keep check on government action not just during crises, but also when we’re emerging out of crises. As we know all too well, emerging out of a crisis often coincides with governments tightening their belts, which can impact disproportionately on vulnerable groups.

Aleta Sprague (13:23) 

As far as what these provisions can do, or what their potential is, in the aftermath of a crisis or in preparation for a next, there are three functions that I would highlight. First is just offering a practical and normative tool against discrimination as economies recover. A second is protecting against backsliding on critical health and social protections, even as countries seek to tighten their budgets, and there are examples we can find of this from previous crises or previous court decisions over the past few decades. And then lastly, I would just point to the role of these kinds of provisions and constitutions as creating a foundation for more inclusive and detailed legislation in these areas.

Aleta Sprague (14:13) 

So, one recent example of that comes from Switzerland. They had a referendum recently on the government’s COVID-19 policies, and voters actually approved a constitutional amendment to improve wages and working conditions for nurses and to advance its realisation — the amendment requires the government to adopt implementing provisions within four years that address remuneration, working conditions, and training opportunities for care workers in detail. So again, it’s just another example of constitutional protections providing a foundation for a more detailed policymaking that can strengthen rights for workers.

Christy Callaway-Gale (14:58) 

As we touched on in Episode 2, structural problems in society can also act as barriers or obstacles in achieving equality. So, the question is now, “How do we address this when thinking about reform to equality law?”

Beth Gaze (15:14)

Addressing structural problems is a huge challenge.

Christy Callaway-Gale (15:18) 

Beth Gaze, Professor of Law at the University of Melbourne Law School,[7] speaking about structural challenges in Australia.

Beth Gaze (15:26)

So, I think that, for me, they fall into two categories: one is the impact in the labour market of the precarious work that many people have no alternative to, and the other one is the role in terms of health and care services, where people were not properly protected. So, I think both of those need– we need to move beyond the individualised focus of anti-discrimination law, we need to deal with these at the institutional level. So, that involves changes to labour law that protect people from being completely vulnerable, and changes to various care providers and provisions that deal with it at the institutional level, rather than leaving it up to individuals to try and protect themselves.

Christy Callaway-Gale (16:14)

This could involve taking what Beth calls a multi-level approach, an approach which might lead us to change the very way we think about the concept of vulnerability.

Beth Gaze (16:26)

I think an approach that is multi-level, and that addresses service provision and economic inequalities as well as the use of anti-discrimination law, is really important. I think it is, no doubt, more difficult to get change at the governmental level — it’s more difficult to get resources directed towards people and perhaps just to get some legislative change — but it really means we need to change the way that we think about vulnerability. I have actually argued for a use of Fineman’s concept of vulnerability,[8] which I think is a very useful one because it draws the focus to the fact that everybody is vulnerable at various stages of their life, there’s not one group of people who are invulnerable, and another who are vulnerable — instead, we all have periods of vulnerability. And the other valuable thing that it does is it asks that question, “Are our institutions properly designed to protect everyone during their periods of vulnerability?” So, I’ve argued that Fineman’s approach would be one that might be able to be developed to provide a basis for the sorts of reforms I think we need.

Christy Callaway-Gale (17:40)

Getting to the point where we’re evaluating how we define vulnerability shows the level of reflection that might be needed to reform equality law legislations and policies to make sure they’re always protecting those who need that protection the most. In this episode, we’ve heard how we could use varying or multi-level approaches, as Beth says, to guide this reform. But if we’re going to be working increasingly with a multi-level approach, we need to make sure no one falls through the gaps between these different levels. This does prompt a bigger question as to who should be providing the canopy, if you like, to catch anyone falling through those gaps. In other words, who is ultimately responsible for protecting the most vulnerable? Join us for our fourth and final episode of this exponential inequality series, where we’ll be asking our human rights experts to answer this very question.

Colm O’Cinneide (18:39)

Who has the ultimate responsibility for protecting the most vulnerable in times of crisis? Well, the simple answer is, everyone in society.

Christy Callaway-Gale (18:49)

This podcast is part of a special series under the Exponential Inequalities Project. The project is led by Shreya Atrey, as the Principal Investigator of the British Academy/Leverhulme Small Research Grant on “Equality Law in Times of Crisis”. The Producer and Presenter was me, Christy Callaway-Gale, Assistant Producers, Mónica Arango Olaya, Gauri Pillai, and Natasha Holcroft-Emmess. Transcripts were produced by Sarah Dobbie and with music by Rosemary Allmann. Thanks to Meghan Campbell and Sandra Fredman for their generous feedback and guidance.

[1] “Professor Anna Lawson” University of Leeds, https://essl.leeds.ac.uk/law/staff/203/professor-anna-lawson.

[2] “Lisa Waddington” Maastricht University, https://www.maastrichtuniversity.nl/lisa.waddington#:~:text=Lisa%20Waddington%20holds%20the%20European,comparative%20equality%20law%20in%20general.

[3] “Alviar García, Helena” Sciences Po École de Droit, https://www.sciencespo.fr/ecole-de-droit/fr/profile/helena-alviar-garcia.html#:~:text=Helena%20Alviar%20Garc%C3%ADa%20is%20a,legal%20theory%20and%20feminist%20theory.

[4] “Staff Profile: Professor Cathi Albertyn” University of Witwatersrand, Johannesburg, https://www.wits.ac.za/staff/academic-a-z-listing/a/cathialbertynwitsacza/.

[5] “Staff” WORLD, https://www.worldpolicycenter.org/about/world-team/staff.

[6] S v President of Malawi and Others; Ex Parte: Kathumba and Others (Judicial Review Cause No. 22 of 2020) [2020] MWHC 7 (17 April 2020), https://malawilii.org/mw/judgment/high-court-general-division/2020/7.

[7] “Beth Gaze” The University of Melbourne, https://law.unimelb.edu.au/about/staff/beth-gaze.

[8] Fineman argues that vulnerability is “universal and constant, inherent to the human condition”, “a state of constant possibility of harm”: Martha Albertson Fineman, “The Vulnerable Subject: Anchoring Equality in the Human Condition” (2008) 20(1) Yale Journal of Law and Feminism. See also Martha Albertson Fineman, “The Vulnerable Subject and the Responsive State” (2010) 60 Emory Law Journal 251; Martha Albertson Fineman, “Vulnerability and Social Justice” (2019) 53(2) Valparaiso University Law Review 341-370.