The 28th Ius Commune Conference took place in Utrecht on November 28-29, 2024. I had the opportunity to present in the workshop ‘Shared Responsibilities for the Protection of Fundamental Rights in Europe’ on 28 November.
My presentation was based on my paper titled “A Typology of Comparators and Comparisons in EU Equality Law“.
The paper’s abstract is as follows:
Comparison plays a sacramental role within EU equality law. The general principle of equality, as well as the definitions of direct and indirect discrimination, require comparison between a claimant and a comparator. However, comparison also deflects EU equality law from its main task: identifying and dismantling systems of marginalisation that cause discrimination.
This article disrupts the prevailing narrative about comparison as an inescapable feature of equality analysis. A closer look at comparison reveals its objective veneer that conceals its commitment to sustaining a formal model of equality. This makes equality law an assimilationist, instead of transformative device.
By deviating from comparison, EU equality law can advance towards a transformative understanding of equality that centres intersectionality. The key therefore lies in the development of comparator-free equality analysis which relies on the understanding that discrimination is contingent on unequal power and resource distribution stemming from past and contemporary patterns of disadvantage, creating systems of marginalisation. Instead of comparing a claimant to a decontextualised inter- or intracategorical comparator, comparator-free analysis conducts a dignitary harm assessment whereby discrimination is contextualised in the past & contemporary patterns of disadvantage that created it to establish a prima facie case of discrimination.
NOZIZWE DUBE 