Human rights experts reveal how we could reform equality law to make sure it protects the most vulnerable in times of crisis.
This is the last episode 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
EPISODE 4: ‘That’s the key question’: Institutional Responsibility for Inequality
Colm O’Cinneide (0:03)
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 (0:12)
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 (0:45)
In Episode 3, we asked how we could reform equality law so it can better respond to exponential inequalities during crises. At the end of that episode, we realised there was a bigger question that needed to be answered, which we haven’t addressed head on yet. That question is, who is ultimately responsible for protecting the most vulnerable, making sure no one falls through the gaps? In this fourth and final episode, we’ll be asking our human rights experts to directly answer this question.
Mónica Arango Olaya (1:21)
Who do you think has the ultimate responsibility for protecting the most vulnerable in times of crisis?
Christy Callaway-Gale (1:27)
That’s one of our Assistant Producers, Mónica Arango Olaya, asking Colm O’Cinneide, Professor of Constitutional and Human Rights Law at University College, London, our million-dollar question. Throughout this episode, you’ll be hearing Mónica and other Assistant Producers, Gauri Pillai and Natasha Holcroft-Emmess, pose this question time and time again. Here’s what Colm says in response to Mónica. Listen up, because his answer will shape how we tell this entire episode.
Colm O’Cinneide (1:59)
Who has the ultimate responsibility for protecting the most vulnerable in times of crisis? Well, the simple answer is, everyone in society. The more complicated answer is— look, I mean, our democratic structures have to be the primary vehicle for protecting the most vulnerable. And courts play an important part, an important role in that regard. But it is important to remember, I think, that we cannot rely on courts and lawyers alone to be the primary actors in this regard.
Colm O’Cinneide (2:36)
There have been some very significant gains achieved when it comes to equality over the last 30-40 years. Many of those gains have been generated by courts and lawyers. Many more have been generated by social movements, by activists, by background changes to social political culture, by the quiet activism of many individuals in many, many, many contexts, by legislators introducing often quite good legislation, by policy-makers doing their best to try and get to grips with inequality in an increasingly stratified capital— capitalistic economy.
Colm O’Cinneide (3:17)
So, the question becomes, how to design discrimination law, and how to design our institutional structures, at both local level and national level, regional level and international level— how to design our laws and our institutional structures in ways that amplify social and political trends, helping us achieve greater equality. That’s the key question.
Christy Callaway-Gale (3:44)
We’re going to take some of the range of actors Colm mentions one by one and assess their level of accountability. We’ll be looking at the individual, public bodies, policy-makers, as well as private actors, civil societies, and the media. In doing so, we will be going right to the heart of this series and trying to find where the buck stops, and importantly, with whom.
Christy Callaway-Gale (4:11)
Jessica Clarke (4:13)
My name is Jessica Clarke, and I’m a Professor of Law at Vanderbilt University. Ultimately, there needs to be collective responsibility for this at every level of government — state, local and federal — and also shared responsibility between the public and private sectors. That’s who should have responsibility for protecting the vulnerable in times of crisis. But unfortunately, what we see too often in the US is the view that individuals are responsible for managing their own risks, and for helping themselves through their own initiative, and that has the predictable effect of compounding patterns of inequality.
Christy Callaway-Gale (4:53)
What Jessica says about moving away from individual responsibility reminds me of Beth Gaze’s comment in Episode 3 about moving, and I quote, “beyond the individualised focus of anti-discrimination law”. Colm O’Cinneide also says something similar, and he really drives home the importance of why it could be beneficial to move away from this individualised approach.
Colm O’Cinneide (5:20)
At the moment, our discrimination law systems very much rely on the brave individual litigant coming forward to challenge discrimination, finding a good lawyer who will bring the case — a lawyer with sufficient expertise in what’s a complicated area of law — and then having that litigant and their heroic, crusading lawyer, bringing the case forward, fighting a court battle, being willing to accept the emotional burden of such litigation, and the— and perhaps the social fame, media controversy that can accompany such litigation. That in— that asks a lot. It asks a lot of litigants. It asks a lot of their lawyers. And I think over the years we have seen that this— that the individual enforcement model does generate some important results. I think, as a society, in important ways we are— we discriminate less than we used to do 30 or 40 years ago, and individual litigants bringing discrimination claims has been an important part of that. But we also need to recognise that big gaps exist in— when it comes to enforcing anti-discrimination law.
Christy Callaway-Gale (6:37)
So, while individuals can still have great impact, the responsibility should not ultimately fall to them to protect themselves.
Christy Callaway-Gale (6:50)
Aparna Chandra (6:52)
My name is Aparna Chandra, I’m an Associate Professor at the National Law School of India University in Bangalore.
Mónica Arango Olaya (7:00)
Who do you think has the ultimate responsibility for protecting the most vulnerable in times of crisis?
Aparna Chandra (7:08)
The ultimate responsibility for protecting the most vulnerable in times of crisis is, of course, with the political branches of the state, but that doesn’t mean that the judiciary does not have a shared responsibility in this respect. You know, in the US, in the Federalist Papers, Alexander Hamilton had very famously said that the judiciary is the least dangerous branch because it neither has “the purse [n]or the sword”, “neither force nor will, only judgment”, is what Alexander Hamilton said. And of course, we’ve seen, since this was written, that the idea of the judiciary as the least dangerous branch has been challenged, in part because the power of judgment itself is very important. And that is, it’s that power of judgment that— that I think is at the centre of what the court can bring to times of crisis in ensuring that the State accounts for the needs of the most vulnerable in how it frames its response to the crisis.
Aparna Chandra (8:16)
So, I would say that, while the ultimate responsibility is that of the State (that is, of the executive and the legislature), the judiciary has a very important role to play in ensuring that, in performing their ultimate role and responsibility, the needs of the most vulnerable are accounted for by the political branches.
Christy Callaway-Gale (8:36)
Once again, I’m reminded of Episode 3, where we spoke in detail about how the courts can help to keep the government in check. But while the courts might have this responsibility, the government can’t shy away from its responsibilities either.
Meghan Campbell (8:51)
All branches of government have a responsibility for upholding the commitment to equality, so that in a time of crisis, the vulnerable are protected, and the crisis does not deepen inequalities.
Christy Callaway-Gale (9:05)
Meghan Campbell, Reader in International Human Rights Law at the University of Birmingham and Deputy Director of the Oxford Human Rights Hub.
Meghan Campbell (9:12)
The moment of crisis should also be seen as a moment of reflection and transformation, to have the humility to really rethink laws, policies, and programmes that resulted in the oppression of these groups before the crisis, and to use a crisis as that crossroads moment to— to change things for the better.
Christy Callaway-Gale (9:38)
Meghan goes on to reflect on the ways that we have historically carved-up responsibility for different sorts of inequality in the UK, and perhaps more broadly, and how this can ultimately be damaging. This is a really interesting point about history and about the way responsibility today can be so influenced by the way we’ve always done things, or the way that we’ve always thought about how certain inequalities should be addressed and by whom.
Meghan Campbell (10:08)
Dividing accountability for inequality — status in the courts, poverty in politics — starts to make very little sense when we understand how status and economic inequalities are mutually reinforcing. It also means that if we only have accountability for economic inequalities within the political realm, that the right to equality for women in poverty becomes an illusion, as they are repeatedly told that the inequalities they experience are up to often hostile political majorities to solve. Courts need to be involved in upholding the right to equality for all people, including people who live in poverty, if the right to equality is not going to become a right for the wealthy.
Christy Callaway-Gale (10:57)
So, governments must remember their responsibilities to their most vulnerable. Courts must keep them in check, and we must try and avoid getting bogged down in historical divisions of accountability.
Christy Callaway-Gale (11:13)
Gauri Pillai (11:15)
To what extent does the responsibility for protecting the most vulnerable during times of crisis lie with those designing social security policies?
Aaron Reeves (11:24)
So, I think there is a serious extent to which the responsibility for protecting the most vulnerable, particularly during times of crisis, lies with those who are, kind of, designing social security policies.
Christy Callaway-Gale (11:38)
This is Aaron Reeves, Associate Professor at the Department of Social Policy and Intervention at the University of Oxford.
Aaron Reeves (11:45)
… policies— those designing those policies need to think really hard now, before the crises come, and that’s because the policies that get made are what I call “ideationally embedded” — that is, that they are embedded in ways of thinking about the world that make certain kinds of policy decisions more intelligible or more acceptable. And so, what I think the last decade or so has revealed is that it’s not just about the policies that get made, it’s about the ways we think about the groups affected by those policies that really plays a really powerful role in shaping the way in which we implement social security policy.
Christy Callaway-Gale (12:26)
This is a throwback to Episode 2, when we talked about how equality law legislation and policies can’t be severed from the society in which they’re created, and therefore from the assumptions that that society might make about a specific group of people. In that sense, Aaron argues, responsibility is about being alert and reactive to these assumptions. And this kind of backs up what Meghan was saying as well about the assumptions we’ve made historically regarding different sorts of inequalities, and maybe, therefore, different sorts of people.
Marta Machado (13:00)
So, there is this other dimension, I think, to accountability and responsibility, which is for thinking about and theorising, what exactly are the assumptions which underpin this policy? How are we expecting it to play out in the lives of those affected? And sometimes that type of thinking needs to be challenged, so that we have the right kinds of theories in— that will shape our policies now, so that when those crisis moments are here, the institutions will be flexible and appropriate to responding to those crises.
Christy Callaway-Gale (13:35)
Policymaking therefore seems to have a key responsibility in foreseeing how the rights of the most vulnerable might be compromised.
Christy Callaway-Gale (13:48)
Marta Machado (13:50)
I’m Marta Machado. I’m a Professor at Getulio Vargas Foundation Law School in Sao Paulo, Brazil.
Natasha Holcroft-Emmess (13:57)
Are you aware of any examples where private actors have needed to step in to help people assert their rights in a time of crisis or otherwise?
Marta Machado (14:06)
Yeah, that was very interesting, because we had a strong problem in the field of domestic violence — it was clear that women had trouble and difficulties to get help, and to denounce the aggressors, and the official institutions, they took a time to react to that situation. And we had one example in Brazil of a— one interesting example in Brazil was this initiative of a department store that created, like, an emergency button on the website, so that the women would pretend they were buying something, and in fact, they were trying to call for help and that would connect with the official hotline for domestic abuse.
Natasha Holcroft-Emmess (14:59)
Do you think it’s a failure of the state if vulnerable people are driven to rely on private actors in this way to seek help regarding domestic abuse?
Marta Machado (15:09)
Yeah, that’s certainly a problem, that public policies were not working to a point that women were in, really, a situation of risk. And that was dramatic— I think, of course, any initiative— and it’s very important to the cause and to anti-discrimination policies that we have private actors also enforcing anti-racist, anti-discrimination, policies and initiatives and— but of course, that cannot replace public policies.
Christy Callaway-Gale (15:47)
Private actors can therefore be useful for setting precedents or trialling approaches, even if they shouldn’t have to fill gaps left by public bodies.
Christy Callaway-Gale (15:58)
Aleta Sprague, who we heard from earlier, agrees with reference to the US context. Aleta, remember, is Senior Legal Analyst at the World Policy Analysis Centre.
Gauri Pillai (16:09)
That actually brings me really well to my last question, which is on the role of private actors. So, my question is, what role do you think private actors can have in protecting the vulnerable during crisis situations?
Aleta Sprague (16:21)
I think the short answer would be that they can lead by example. So, here in the US, I’ve highlighted the issue of sick leave and how, without a national policy, there are huge gaps in who has access to paid sick leave, and that those gaps really fall along racial lines and socio-economic lines. At the same time, during the pandemic, there were employers who stepped up to fill those gaps, and it matters.
Aleta Sprague (16:49)
There was actually a study already published in Health Affairs, one of the major public health journals here, about the impact of one of these employer-initiated changes. It was a restaurant chain, Olive Garden, that newly began offering paid sick leave during the pandemic, even though it was exempt from the temporary Emergency Sick Leave law that the Congress passed. So, they did not have to do this, but they elected to, and it resulted in about a 15-percentage point reduction in the share of workers who reported going to work while sick in the preceding month during the Fall of 2020, according to this analysis. So, the decision to begin providing leave likely prevented a significant number of COVID infections and set an example for the service industry, which is one industry in which workers in the US definitely have fewer social protections than many others. At the same time, even though examples like this are encouraging, I think we can’t let the public sector off the hook.
Christy Callaway-Gale (17:59)
So, private actors can have a positive impact but shouldn’t be relied upon to provide the net for those potentially falling through the gaps, partly because, as we’ve heard, it is their choice, not their obligation, to do so.
Christy Callaway-Gale (18:15)
Civil societies and the media.
Kelly Loper (18:18)
Civil society organisations and the media have also played important roles, and in the absence of democratically representative government, civil society groups and the media have been able to diagnose problems and bring them to the attention of policymakers. And sometimes this has been successful, and at the very least, it has raised public awareness of what’s happening.
Christy Callaway-Gale (18:43)
Kelley Loper, Associate Professor and Director of the Human Rights Programme at the University of Hong Kong.
Kelley Loper (18:49)
During the most recent wave of Omicron infections in Hong Kong, there have been a number of issues related to the treatment of migrant domestic workers by their employers. So, migrant domestic workers in Hong Kong, who are mainly from Indonesia and the Philippines, as well as a few other countries, and mainly women, are required to live in their employers’ homes while they’re in Hong Kong working on a two-year contract. And the media and migrant workers organisations have actually reported that a number of these women were fired by their employers for contracting COVID or they were forced to move out of their employers homes and sleep on the streets, and advocacy groups, as a result— and as a result of a public outcry because of the media reports about these issues, that advocacy groups have pushed for better guidelines for employers, and have actually so far prompted some positive responses by senior government officials.
Kelley Loper (19:55)
So, I think that, you know, this interaction between civil society organisations, the media, and the government is something that really has been a very important characteristic of civil society in Hong Kong, and has been behind a lot of the— if limited, the somewhat progressive changes, including the introduction of anti-discrimination legislation, and some of the strategic litigation that we’ve seen on equality issues that have come before the courts.
Christy Callaway-Gale (20:30)
Civil societies and the media — important for raising awareness and pushing for reform, but not ultimately accountable.
Christy Callaway-Gale (20:41)
So, perhaps no surprise that it hasn’t been simple to effectively isolate one institution that has ultimate responsibility for protecting the most vulnerable. Governments, courts, and policy-makers have intersecting responsibilities, while private actors, civil societies, and the media, we could perhaps, say, have a duty to shine a light on where these responsibilities are not being met, and to pave a path forwards, if they can. However, as courts are required to keep the government and policy-makers in check, it does seem that courts are the metaphorical canopy we were looking for to catch those falling through the gaps between institutional provisions.
Christy Callaway-Gale (21:28)
If you told us this at the beginning of the series, I don’t think we would have been surprised. And you might ask, if we could have guessed that at the beginning, well, what was the point of making this series in the first place? Well, what this series has underlined more than ever is that our institutions exist within a delicate intersecting network, much like inequalities themselves intersect. We’ve learned that inequalities not only intersect, but they often compound during crises. We’ve learned that equality law, legislations and policies regularly fall short in times of crisis, and outside of them, and we’ve heard about some of the possibilities for impactful change. But most of all, we’ve learned… Well, let me leave this final observation to Shreya Atrey, Associate Professor in International Human Rights Law at the University of Oxford, and the Coordinator of this Exponential Inequalities research project.
Shreya Atrey (22:37)
But the key for exponential inequality is what we call— is really to address them before they arise, and this seems to come through in several of the chapters which have been contributed to this project, and I think this is the take-home message we’d hope that we can work towards, not just in times of crisis, but perhaps before crises and during the crisis. So, it’s not when crises really are triggered, but really to put in place practices which are— which are well underway when something, such as the pandemic, occurs.
Natasha Holcroft-Emmess (23:12)
Perfect. Thank you, Shreya. I think that’s all of the questions that I had.
Mónica Arango Olaya (23:17)
Perfect. We got this.
Christy Callaway-Gale (23:20)
If you’ve enjoyed this series, please look out for our upcoming book where all these ideas and more are presented in further depth. The book, entitled “Exponential Inequalities: Equality Law in Times of Crisis”, is co-edited by Shreya Atrey and Sandra Fredman, and will be published by Oxford University Press later in 2022. The Producer and Presenter with 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
 “Prof Colm O’Cinneide” UCL Facility of Laws, https://www.ucl.ac.uk/laws/people/prof-colm-ocinneide.
 “Marta Rodriguez de Assis Machado” FGV Direito SP, https://direitosp.fgv.br/en/professor/marta-rodriguez-de-assis-machado.
 “Staff” WORLD, https://www.worldpolicycenter.org/about/world-team/staff.
 Daniel Schneider, Kristen Harknett and Elmer Vivas-Portillo, “Olive Garden’s Expansion Of Paid Sick Leave During COVID-19 Reduced The Share Of Employees Working While Sick” (2021) 40(8) Health Affairs, https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.02320.
 “Kelley Loper” The University of Hong Kong: Faculty of Law, https://www.law.hku.hk/academic_staff/kelley-loper/.