‘Intersectionality’: A Blind-Spot Missed in the British Equality Framework?

The current British Equality Framework is premised upon a single-ground approach which assumes that people’s identities may neatly be classified into manageable characteristics in order to claim protection. Accordingly, a black woman facing discrimination on the basis of being a black woman per se will fail to receive protection under the current approach. This is where intersectionality steps in; to appreciate that an individual’s identity components may be so intertwined that an attempt to split them up will not be reflective of the intersectional subject’s experience. Thus, an intersectional approach internalises the real-lived experiences of its subjects rather than attempting to force them to suppress aspects of their identities in order to claim protection. Subsequently, the disparity between the British Equality Framework and the intersectional approach advocated for in this paper exposes a gap in the fight against discrimination. This paper considers that gap a ‘blind-spot’. Therefore, intersectionality theory will be used to analyse the British Equality Framework in order to prove the prevalence of the blind-spot and uncover its origins. It will be shown that the current framework lacks an intersectional approach. The paper concludes by calling for steps to correct it and subsequently offer protection to those once neglected by the current single-axis approach.


INTRODUCTION
Is a black woman really just an unraced sex or an unsexed race?Since its conception, the British1 Equality Framework has protected against discrimination based on a single identity characteristic such as sex 2 or race 3 or disability. 4nsurprisingly, this single-ground approach was reflected in the current Equality Act 2010, 5 which defines direct discrimination as an unfavourable treatment on the basis of a protected characteristic 6 out of the nine protected characteristics. 7his approach enjoys the advantage of tailoring the remedies available to each instance of discrimination.However, it fails to consider that 'gender reaches into disability' 8 and that 'black people can be old' 9 ; i.e. it fails to notice the reality of the human identity as one that cannot always be broken down into manageable characteristics.This is where intersectionality theory comes in.Conceptualised in the late 1900s, intersectionality was conceived to disrupt the exclusion of black women from social movements and political discourse as a result of the single-ground approach inherent in policymaking and the Anti-Discrimination Law ('ADL'). 10ccordingly, the current approach assumes that a black woman's identity can be broken down separately into race and sex, rather than conceiving the two as inseparable.However, intersectionality posits that both racism and sexism, as two different systems of oppression, interlock to produce her uniquely formed experience, which is conceptually different from the sum of both grounds.Accordingly, this paper argues that there exists a gap between the real-lived intersectional experiences of individuals and the law, thus resulting in a 'blindspot'.
Preliminarily, it should be noted that this paper is concerned only with workplace-related direct discrimination based on any two of the nine protected characteristics.The discussion is limited to dual discrimination because this paper believes in an incremental approach to acknowledging intersectionality within the Framework.Otherwise, this paper predicts that the legislative and the executive will resist intersectionality on the basis that it could strain the resources of both the courts and businesses.As such, and as will be seen later, the executive has already rejected dual discrimination on that basis.
The first section puts forward the theory of intersectionality as an analytical framework on the premise that an individual's identity features intertwine inseparably to create a distinctly formed intersectional experience.Further, the theory sheds light on the identity politics problem caused by ADL's essentialist account of identities.Moreover, intersectionality, as an account of power, exposes the ways in which structural discriminatory dynamics interact to marginalise victims existing at the intersections.In doing so, intersectionality exposes the blind-spot and informs what solutions may be offered to remedy it.
The second section uses intersectionality as a device to analyse the British intersectional discrimination jurisprudence to prove the prevalence of the blindspot.An intersectional lens is utilised to analyse the judicial approach to discrimination claims in Lewis, 11 Mackie, 12 O'Reilly, 13 and Hewage. 14However, the majority of the section focuses on the seminal case of Bahl, 15 which rejected the recognition of intersectional discrimination under the framework.Moreover, this section addresses the comparator requirement and its strict judicial application as a means to impeding intersectional discrimination.The collective result of the above arguments proves this paper's thesis that the current framework fails to protect victims against intersectional discrimination.
The final section considers potential reforms within the British Equality Framework.The first proposal concerns the reintroduction of section 14 16 ('s.14')into the Equality Act 2010 to provide a formal cause of action against direct dual discrimination.The second proposes that the judges, when faced with a dual discrimination s.14 claim, exercise a relational analysis towards the two forms of oppression to locate the victim's unique intersectional location.This section also addresses why the widely supported positive actions model is ill-suited in addressing intersectionality.Finally, the third reform proposes a change in the judicial application of the comparator requirement.The shift involves changing the question from 'but for' to 'but why'.The section concludes with a three-stage test proposed to be used by judges when faced with s.14 claims.This is believed to assist in correcting the blind-spot, as it explicitly incorporates an intersectional approach in dealing with discrimination.

I. INTERSECTIONALITY
Although the concept of 'intersectionality' finds it origins back in the 1800s, 17 Kimberlé Crenshaw officially coined the term in 1989. 18She used intersectionality to target the marginalisation of black women within ADL, feminist movements, and critical race theory.She employed intersectionality as an analytical framework to expose the tendency 'to treat race and gender as mutually exclusive categories of experience'. 19Such approach assumed that a black woman was either a woman (sex) or black (race).Regrettably, this is not reflective of her reality as a black woman per se where sex and race fused 'inextricably' 20 to render her intersectional experience greater 'than the sum of racism and sexism'. 21ccordingly, the real-lived experiences of individuals do not map onto the law, making the aforementioned blind-spot all the more apparent.

A. Multiple Identities
Intersectionality is premised upon the notion that an individual's identity characteristics are intertwined and not easily separable.ADL disregards this notion, which instead splits an individual's identity into 'classified, manageable aspects'. 22Accordingly, an Asian woman's identity is split up into race and sex23 by virtue of the additive approach which has long been inherent in ADL discourse.This is problematic as it marginalises the experiences of those whose identity aspects cannot be fragmented into neat 'pockets'24 and thus it fails to account for their interests.
Accordingly, Figure 1 can be used to visualise an intersectional subject's experience as qualitatively different than the sum of its two constituent components.

Figure 1: Visual representation of intersectional discrimination
As Figure 1 demonstrates, intersectionality 'fills out the Venn diagrams at points of overlap where convergence has been neglected'25 by ADL discourse.
Not to mention, ADL's blind-spot produces negative conceptual and practical effects for its victims.The Human Rights Forum26 study27 acknowledged identity as essential to 'people's positive sense of self'. 28In turn, this mandates respect for their dignity, a value equality law aims to protect. 29ccordingly, Uccellari correctly observes that if discrimination law lays down its own notions of identity on individuals, then it will strip them of the values that legislation ought to protect.Therefore, if ADL postulates its own notions of identity, then it will strip victims of such values. 30further practical effect of the single-axis categorisation is that it encourages policymakers to evaluate the individuals they are accountable to by reference to previously established legal groups.This induces these policymakers to design policies by reference to artificial notions of identity,31 which will force individuals to identify with one category over another in order to reap the benefits of these policies.It becomes apparent that the single-axis approach operates in a cycle: because legislation induces artificial categories and provides for no recourse around that, policymakers then assume that human experiences are being accounted for, and thus they introduce policies that correspond with the law's singular dimension.This is where intersectionality, as a heuristic, intercedes and breaks the cycle by exposing its failure to honour the complexity of the human experience.

B. Identity Politics
Moreover, intersectionality reveals that ADL over-fixates on predetermined identity groups. 32Traditional ADL discourse treats identity groups as internally homogenous thereby overlooking intra-group differences. 33Accordingly, a black woman's experience is compared to that of a white woman's or of a black man's and she can therefore only receive protection if she proves her experience is similar to either group's.It is not.This essentialist account, Fredman notes, obscures real differences within identity groups. 34Adopting such an account could lead to policies that address the needs of a group's most dominant members, 35 while ignoring the needs of any sub-categories.
Contrarily, Makkone 36 argues that the reason behind this oversimplification of group interests is that it serves a depiction of complex real-life phenomena which is more manageable and understandable.Thus, he asserts, recognising the full diversity of group members would be burdensome and, at times, selfcontradictory.Although there exists practical merit in his arguments against focusing on sub-groups, this oversimplification comes at the expense of silencing sub-group members' voices.A consequence of which involves potential damage to their lived experiences as they may consider themselves not worthy of being heard, 37 which may generate negative psychological effects such as depression and anxiety as a result of societal exclusion. 38After using intersectionality to expose the limits and consequences of mutually exclusive groups, it now serves as a useful tool in the policymaking process to ensure such the avoidance of these consequences.

C. Power Dynamics
Intersectionality does not only reveal that individuals are multi-faceted, but also draws attention to the ways in which power dynamics operate to marginalise 33  victims.As an account of power, intersectionality reveals how these force structures create and employ identities. 39As a result, it focuses on 'the way things work [rather] than who people are'. 40Accordingly, Tomlinson notes: 'If... intersectionality is a matter of identity rather than power' then we 'cannot see which differences make a difference.Yet it is exactly our analyses of power that reveal which differences carry significance'. 41Hence, a failure to recognise the dynamics, which dictate the subject's experience risks, leave her or him invisible at the intersection of power structures.
However, MacKinnon's caution against treating identities as irrelevant bears significant weight here.This is because identities are the ossified outcomes of structural intersections. 42The latter leads to the emergence of identities and their subsequent solidification, making the former a direct consequence of the latter.
Nonetheless, the degree and nature of discrimination varies with cultural, socio-political and economic context.Therefore, an over-emphasis on identities risks disguising economic and distributive issues. 43An individual's identity is not the problem per se; the problem is rather the way in which it is socially constructed and accordingly treated. 44For instance, Fredman identifies race as a social construct, 'a marker for oppression rather than a biological reality'. 45Accordingly, an ethnic minority in one nation might constitute the majority in another.Therefore, ethnicity itself does not automatically attract oppression.Rather, oppression occurs as a result of the power relations which dictate the social construction of race in a society.As such, Fredman's notion of substantive equality bears relevance here as it 'explicitly incorporates differences in power relationships'. 46This will be referred to in the final section.Now that intersectionality sheds light on the blind-spot, it will be used in the next section to analyse the British Equality Framework.

II. BRITISH EQUALITY FRAMEWORK
Having explained what intersectionality is in the previous section, the theory will be used in this section as a tool to analyse the judicial and legislative approach to intersectional discrimination in Britain.To achieve this aim, this section has four objectives.First, a brief analysis of the equality regime in Britain will be provided for contextual purposes.Second, this paper will distinguish between additive (or compound) discrimination and intersectional discrimination.Third, this paper uses an intersectional lens to analyse the judicial approach to intersectional discrimination claims in the cases of Lewis, 47 Mackie, 48 O'Reilly, 49 and Hewage. 50However, the majority of this section will focus on the seminal case of Bahl, 51 which rejected the recognition of intersectional discrimination.Finally, the legislative comparator requirement and its subsequent strict judicial implementation will also be criticised using an intersectional lens.

The Equality Act 2010
Historically, the British Equality framework was focused on protecting a single characteristic 52 at any given time.4 An advantage of this approach involves the tailoring of specific remedies to each bias 55 after that protected characteristic is 'isolated and magnified' from other identity aspects. 56However, this exhaustive method fails to notice that 'gender reaches into disability' 57 and that 'black people can be old'; 58 i.e. it fails to recognise intersectionality which blossoms on the 'conjuncture of social structures' 59 and not on the pre-determined categories.A further barrier to intersectional discrimination claims involves the strict comparator requirement, which requires courts to make a comparison between the claimant and someone similarly situated but for the claimed characteristics. 60s a starting point, it can be seen that the legislation potentially impedes intersectional discrimination claims.

A. Scope
This section will not engage with empirical evidence which points to the extent of intersectional discrimination in the UK. 61This is because the Government Equalities Offices published a report in 2009 where it admitted to there being no remedy under the current framework for intersectional discrimination. 62hus, this section does not aim to prove the prevalence of a protectoral gap, because there evidently is none.Instead, this section uses intersectionality to uncover the reasons behind this gap, so as to encourage the government to acknowledge the severity of intersectional discrimination rather than considering it a costly inconvenience.It should be recalled that this paper is only interested in direct dual discrimination based on the nine protected characteristics under the Equality Act. 63The reason for narrowing the scope of the analysis in such a way is that data demonstrates that less than 1% of cases are presented on more than two grounds. 64

B. Additive Discrimination vs. Intersectional Discrimination
Both 'additive' (or compound) discrimination and 'intersectional' discrimination fall under the umbrella term 'multiple discrimination' and are used by scholars interchangeably. 65However, this paper uses the below stated definitions throughout.Additive discrimination occurs 'where someone is treated less favourably because of more than one protected characteristic at one time but the forms of discrimination are distinct'. 66Therefore, the multiplicity of the discrimination has a quantitative effect that increases in size and not nature. 67The current framework effectively protects against additive discrimination 68 since it requires claimants to advance all grounds of the discrimination independently. 69For instance, the Employment Tribunal (ET) in the Ali . 70case concluded that an Asian woman was discriminated against on grounds of race and sex.Neither a 63 Equality Act 2010, s 4. 64 Government Equalities Office (n 62) para 4.9, 119 of 13,000 clients. 65 man nor a white woman would have been treated similarly. 71This approach arguably minimises complexity in judicial decision-making by concentrating on separate grounds.
Conversely, intersectional discrimination involves someone being treated less favourably because of more than one protected characteristic on one occasion but it is the 'unique combination of characteristics that results in discrimination'. 72ence, it involves a "new compound subject" 73 with a qualitatively different experience whose characteristics, unlike those in additive, cannot be disaggregated.An example involves situations where an African woman who, as a result of race and sex combined, is forced to undergo Female Genital Mutilation.The same is not commanded of women in general nor from African men. 74

C. Case-law Under an Intersectional Lens:
There are some decisions which suggest that the British judiciary is capable of recognising direct intersectional discrimination.For instance, the Employment Tribunal ('ET') in Lewis 75 recognised the qualitatively different experience embodied by black women and concluded that a black woman was discriminated against based on her race and sex combined.Similarly, in Mackie, 76 an Indian woman, successfully claimed race and sex discrimination.The Tribunal used a hypothetical comparator to conclude that the unfavourable treatment was because she was an Indian woman. 77Hence, both these decisions imply that the courts are neither as conceptually nor legally blind to intersectional discrimination 71  as a quick glance into the case law might suggest.However, these cases preceded the Court of Appeal decision in Bahl .78 which ruled against the recognition of intersectional discrimination.

(i) Bahl v Law Society
Arguably, the Bahl . 79case confirms this paper's hypothesis that the British framework inherently suffers from an intersectional blind-spot.The claimant, Bahl, advanced a discrimination case against her employer on the basis of her status as a black woman.Her claim for intersectional discrimination was successful at the ET stage 80 which concluded: 'We do not distinguish between… race or sex… in reaching this conclusion….There was no basis… for comparing her treatment with that of a white female, or a black male, office holder.' 81However, both the Employment Appeal Tribunal 82 ('EAT') and the Court of Appeal 83 ('CA') rejected the ET's reasoning and stressed upon the need to split up the grounds into race and sex, and provide evidence separately.Thus, the higher courts rejected the possibility of intersectional discrimination achieving recognition.
This case clearly represents the judicial restraints imposed by the legislation's monocular approach. 84Since the legislation protects against single, mutually exclusive 'characteristics' rather than complex, compounded identities, it blinds the courts from seeing intersectionality.This approach failed to adequately protect Bahl, a victim at the intersection of oppressions, who sought refuge in the Equality Framework.By requiring Bahl to break down her intersectional experiences into manageable claims, the CA effectively failed to reflect her multi-78 Bahl v Law Society (n 15). 79 layered experience and the true extent of their suffered injustice. 85Bahl . 86exposes the Framework's systemic incapacity to acknowledge and protect intersectional discrimination victims.
By imposing its own notion of identities, equality legislation and subsequent court judgements signal to these victims that their identities are not valued by society, nor are they worthy of protection. 87Further, the so-called 'fairness' approach to equality, adopted by the CA, which fails to recognise discrimination grounds as interlinked, is 'structurally antithetical to developing a nuanced recognition of intersectionality' 88 within anti-discrimination discourse.
The lack of an intersectional perspective is also apparent in Gibson LJ's remark when he stated that it is rare to find a woman guilty of sex discrimination against another. 89Again, this is symptomatic of the essentialist thinking referred to earlier. 90This line of reasoning assumes that all women share the same experience defined by the group's dominant members. 91Correspondingly then, this reasoning assumes that Bahl's experience is limited to that of white heterosexual women's.In reality though, Bahl's experience, as a black woman, is not captured by this line of reasoning and is thus left without recourse.There exists evidence in Solanke's work which proves that black women's experiences are not similar to white women's. 92This also can be used as a basis for reforms to be discussed in the next section.

(ii)
Aftermath of Bahl The danger of Bahl, 93 as a Court of Appeal decision, concerns the precedent it sets which inevitably binds future courts. 94Or one would assume.It appears from the widely publicised O'Reilly 95 case that Tribunals remain sympathetic to intersectional claims.In that case, the ET stated that an individual could be discriminated against because of the combination of both age and sex (although only age discrimination was made out).It explained that 'the prescribed reason need not be the sole… or even the principal reason, why a person suffers detrimental treatment…'. 96O'Reilly 97 appears to be in complete defiance to Bahl. . 98owever, a closer look into the Tribunal's reasoning reveals similarities with the Bahl . 99approach.In O'Reilly 100 , the tribunal acknowledged and accepted intersectional discrimination as a possible occurrence whereas the higher courts in Bahl . 101refused to acknowledge that same proposition.Yet, the constraints of the British law took hold on the Tribunal in O'Reilly 102 and forced them to choose one characteristic (age) that the claim could be advanced under. 103e Tribunal simplified the claimant's complex, intersectional experience (based on age and sex) for the sake of practical convenience.This effectively demonstrates that the Framework deems worthy of protection only one aspect of her identity whilst completely ignoring its intersection with another aspect.Taking an intersectional approach would have reinforced the claimant's sense of selfworth and her faith in a Framework designed to protect her.Nonetheless, this leads to an interesting observation: while the courts are willing to acknowledge intersectional discrimination, the legislation prevents them from doing so.Therefore, courts' lack of an intersectional perspective is a reflection of the position taken in statutes. 93Bahl v Law Society (n 15). 94See Nagarajan v London Regional Transport [1998]  Another Supreme Court case which would seem to conflict with the principle in Bahl . 104is Hewage. 105There, the claimant advanced a discrimination claim on grounds of both race and sex by comparing her treatment to that of a white male.She was not required to split her claim into (i) race, whereby she would have had to compare herself to a white female; and (ii) sex, whereby her comparator would have been a black man.Some argue that Hewage 106 signals a shift in the law since the Supreme Court did not take issue with the Tribunal's approach. 107However, the court did not explicitly endorse intersectional discrimination, nor did they overturn Bahl. 108Therefore, the current framework still does not recognise intersectional claims.
A further effect of Bahl . 109is that it dictates the approach undertaken by lawyers in advancing discrimination claims.Under the current regime, lawyers strategically second-guess which dismantled thread of an intersectional discrimination claim will succeed in court. 110This 'lawyering' 111 angle advances the 'strongest' 112 ground and ignores the others 113 in fear of losing the case completely. 114However, this approach debatably weakens the claim 115 considering the unfavourable treatment was based on the idiosyncratic fusion of two 104 Bahl v Law Society (n 15). 105Hewage v Grampian Health Board (n 14). 106ibid. 107 grounds.Moreover, this requirement assumes that people have a choice as to which aspect of their identity 'will haunt them and which one they'll be free of'. 116bsequently, the current approach encourages competition between different structures of inequalities 117 resulting in an 'Oppression Olympics'. 118hat is, different are made to compete for the label of being 'most oppressed' 119 to gain political attention and policy remedies for their group instead of cooperating towards seeking institutional reform which could alter the logic of distribution of resources. 120This is an unsatisfactory approach as it clearly does not reflect the intention of the legislator.Furthermore, it can be settled that 'victims of bias should not have to approach anti-discrimination law as consumers and make choices where none actually exist'. 121To such victims, their identity features do not exist in disjunctive vacuums; they cannot reasonably be expected to cherry-pick which of their sole features mandated the less favourable treatment.To summarise, intersectionality theory was used here as a 'tool to look beneath the surface' 122 so as to uncover the negative effects of the decision in Bahl. 123

D. The Comparator
The comparator requirement for establishing discrimination is, arguably, the 'most difficult barrier' 124 to intersectional discrimination claims.It is rooted in the Aristotelian doctrine of formal equality which asserts that likes must be treated alike. 125This approach is unsurprising, considering the Equality Act's formal equality underpinnings, which consistently demand comparison between likes.If there is no real person to be used for comparison, a hypothetical one is constructed. 126Accordingly, the treatment of a woman would be compared to that of a man, a disabled person to a non-disabled person, and so on.Considering the legislation allows comparison for only one ground, 127 it becomes clear why this requirement hinders intersectional discrimination claims.The comparator must not share the protected characteristics.
Hence, when it comes to multiple characteristics, it is near impossible to locate or construct a comparator that does not share any of the claimant's protected characteristics. 128For instance, would a Muslim lesbian claimant, advancing a direct discrimination claim based on sexual orientation and religion, be compared to a non-Muslim straight woman, or a non-Muslim gay individual?The first option shares with the claimant the protected characteristics of 'sex' whilst the second option shares the 'sexual orientation', both of which are protected characteristics.Whilst it is beyond the scope of this article to answer this question, the latter illustrates the difficulties of finding a suitable comparator in intersectional discrimination cases.
Even if several grounds for discrimination are advanced, 129 Bahl . 130clarified that only one comparison can take place at any chosen time.Furthermore, even if the courts were willing to accept intersectional discrimination, they are required to find a comparator.Indeed, judges previously acknowledged that comparators are not always available nor helpful.This is exacerbated in cases of intersectional discrimination as seen above. 131As Hannett 132 correctly observes, an analysis of the courts' approach regarding comparators is hampered by their failure to virtually locate the appropriate comparator, or even expressly state the comparator used. 133vertheless, the Bahl 134 case can be used to point out the courts' conservative use of the comparator requirement.In Bahl, 135 the lack of such a requirement was fatal to the claim.Hence, this paper finds merit in Goldberg's claim that the comparator exercise is being transformed from a heuristic device 136 (i.e., a process supposed to aid decision-making) to a defining element in discrimination cases. 137Based on the decision in Bahl 138 and other case law previously discussed by this paper, it becomes apparent that the courts consider an appropriate comparator, or lack thereof, to be a decisive factor in discrimination cases.This leaves claimants, such as the Muslim lesbian above, without a fighting chance by which to advance their claim and subsequently obtain justice.Therefore, the courts' focus on the comparator requirement in deciding discrimination cases actively limits their ability to recognise intersectional discrimination.
Additionally, establishing discrimination under British law is a comparative exercise. 139Consequently, because a comparator does not take into account the exclusionary patterns that result in an intersectional subject's unique disadvantage, it fails to protect them.This 'comparator-obsessed legal regime' 140  rather they are based on the social structures that create them.As such, it is the intersection at which these pre-determined categories exist that intersectionality puts the spotlight on.Therefore, this comparator requisite is revealed by intersectionality as being 'over-inclusive': its role as a heuristic to reveal discrimination is overstated by the courts as it fails to notice the unique disadvantage suffered intersectionally.This lends support to this paper's thesis that the current framework lacks an intersectional lens.Thereby, an intersectional solution, discussed in the next section along with other reforms, would be to loosen the requirements for the comparator.

III. REFORMS
This section proposes and reviews reforms.It should be noted that there exist international human rights solutions 141 which aim to address intersectional discrimination.However, due to their non-binding nature, they will not be discussed.Accordingly, this section proposes three reforms that range from legislative measures to subsequent judicial interpretations.Conclusively, this section crafts a three-stage judicial test relating to intersectional claims to potentially correct the blind-spot.As a note, this section uses the terms 'dual discrimination' and 'intersectional discrimination' interchangeably.

(Re)introducing Legal Measures
The first reform entails the use of law.This entails re-introducing section 14 ('s.14') of the Equality Act, which was designed to expressly prohibit direct discrimination 'if, because of a combination of two of the [protected] characteristics [(except for marriage/civil partnership and pregnancy/maternity)], a person treats another less favourably than… a person who does not share either of these characteristics'. 142Bringing a s.14 claim does not preclude the possibility of bringing a claim based on a single ground or on both grounds independently. 143 141 For example: Convention on the Elimination of All Forms of Discrimination against Women; Convention on the Rights of Persons with Disabilities; For a full discussion on international human rights solutions, see Gauthier de Beco, 'Protecting the Invisible: An Intersectional Approach to International Human Rights Law' (2017) 17(4) Human Rights Law Review 633-663 < https://doi.org/10.1093/hrlr/ngx029>accessed 02 March 2019. 142Equality Act 2010, s 14. 143 Moon (n 127) 172.This is suitable because not every discrimination case will be based on dual characteristics.The executive's decision not to implement s.14 was justified on the basis that it would be too 'costly' on businesses144 in relation to the cost of new cases, the compensation of successful cases, and the out-of-court award settlements. 145owever, this paper contends that these costs are unmatched to those incurred by victims left without access to justice. 146The Government Equality Office ('GEO') itself found that the number of new cases, after s.14's implementation, would surge by only 10% for 2 years, as the courts and tribunals establish substantial precedent.However, the estimated 2% success rate of s.14 cases potentially justifies its 'costly' implementation.Since this rate is clearly low, the concern that substantial business resources will be directed towards compensating victims is now moot.In addition, familiarisation costs were estimated at £14 per Small and Medium Businesses and at £32 per large enterprises.These costs are arguably unmatched by those incurred by individuals, should they be left without recourse.Finally, it is important not to overlook the benefits afforded to individuals should s.14 be implemented; these include monetised compensations from successful cases and overall increased morale and sense of belonging, which in turn increase productivity. 147Ultimately, the government's decision to not implement s.14 based on costs is unjustified.Accordingly, s.14 provides a formal cause of action on to which dual discrimination claims can be based.This potentially increases the potential success of such claims. 148Indeed, this is condoned by Trade Unions, who term s.14 as a 'hook' to which such claims may be attached. 149Furthermore, a s.14 claim does not require the claimant to prove discrimination on each ground separately, 150 thereby ensuring that the dual discrimination is the sole reason of the unfavourable treatment. 151This would plausibly lead to a more serious judicial recognition of intersectional discrimination as they realise its qualitative distinction from singleground claims.It would resemble the ET's approach in the cases of Lewis 152 and Ali . 153mentioned earlier.Consequently, this demonstrates to these victims that their legal framework is capable of protecting them should societal practices fail them.This is likely to increase their sense of inclusion in society which subsequently positively impacts their well-being and their productivity within the workforce. 154nversely, it could be argued that a statutory definition of dual discrimination prevents a more flexible development of the concept which may hinder the incorporation of intersectionality into the framework. 155However, this could be countered by the fact that all other prohibited discriminatory practices, 156 since the conception of anti-discrimination law 40 years ago, 157 have embodied this rigidity, so by analogy, dual discrimination should too.Even though intersectionality differentiates dual discrimination from other claims, the discriminatory practice itself remains within the ambit of the Equality Act. 158hus, as a first step towards correcting the blind-spot of the current approach, this paper embraces the reintroduction of s.14. 150Equality Act 2010, s 14(2). 151 Although s.14(2) excludes the protection of marriage/civil partnership and pregnancy/maternity, this paper advocates for their inclusion if a truly intersectional approach is to be embodied.The exclusion was justified on the grounds that they are unlikely to apply 159 as there was no evidence to showcase that these characteristics, combined with others, would cause problems.Specifically, regarding pregnancy and maternity, the GEO justified its exclusion based on the fact that these characteristics do not require a comparator, and that it would 'be difficult to see how pregnancy and maternity could be included in a dual discrimination claim in combination with another protected characteristic which does not require a comparator'. 160With regard to marriage and civil partnerships, their exclusion was justified on the basis that such claims will likely be advanced on the basis of sex or sexual orientation respectively. 161vertheless, intersectionality is premised upon acknowledging the uniquely formed identities of individuals.Therefore their exclusion by the executive implicitly rejects that premise by dismissing these grounds' potential interactions with the other eight protected characteristics. 162Accordingly, a single mother would not be able to advance a s.14 claim based on marital status and sex, although research on maternal stereotypes exhibits a link between perceived lack of incompetence and motherhood at work. 163Conversely, this oversight could debatably be attributed to the lack of parliamentary scrutiny s.14 received due to its late introduction into the Equality Bill. 164Nonetheless, this section identifies this oversight as an intersectionally-blind one, and therefore proposes the inclusion of these grounds to rectify it.

(i) Legal Certainty
The solidification of protection against dual discrimination in legal text limits judicial discretion in determining whether such claims are capable of being 159 Hand (n 66) 2. 160 Equality Bill Impact Assessment Version 3 (n 145) 215. 161Hand (n 66). 162Equality Act 2010, s 4. 163 Joan Williams and Stephanie Bornstein, 'The Evolution of "FReD": Family Responsibilities Discrimination and Developments in the Law of Stereotyping and Implicit Bias', 59 Hastings L.J 1311-1358, 1327. 164Hand (n 66) 3.
protected under the framework.Thus, the implementation of s.14 explicitly crystalises the protection against dual discrimination, thereby offering legal certainty.Correspondingly, limiting judicial discretion is alleged to be a favourable approach because, as McColgan asserts, the judicial body has not proven itself to be relied upon to exercise such discretion in favour of the disadvantaged. 165This can be demonstrated by reviewing the jurisprudence discussed in Section 2. One can clearly observe the lack of a principled method in determining whether intersectional discrimination could be offered protection under the current framework, which in turn led to inconsistent decisions. 166This paper acknowledges that the judges' own abilities to appreciate intersectional discrimination were confined by Parliament's decision not to solidify the protection.Nonetheless, the law needs to address the fact that intersectional discrimination has fallen through the cracks of the Framework.Shockingly, the respondents in O'Reilly,167 relying on Bahl,168 attempted to argue that, in the absence of s.14, combined discrimination claims are not actionable. 169Although the argument was rejected in O'Reilly, barring s.14, it cannot be held with certainty that it will be rejected again in future cases.This uncertainty is likely to discourage victims of intersectional discrimination from seeking justice considering the already time-consuming and expensive legal proceedings exacerbated by the cut in Legal Aid for employment cases by the Equality Act. 170Nevertheless, this judicial inconsistency may be justified based on this paper's main thesis that the current framework lacks an intersectional perspective.Therefore, judges cannot reasonably have been expected to comprehend the conceptual difference of intersectional claims and increase discrimination law's complexity, because there simply did not exist a reason for them to do so.To that extent, this legal certainty accompanying s.14 helps correct the blind-spot by reminding judges of the conceptual difference of intersectional claims.This is not to say that s.14's introduction to the framework will be implemented seamlessly.As mentioned earlier, it is estimated that it would take about 2 years for the courts to interpret s.14 and establish robust precedent.Moreover, the time for businesses and SMEs to familiarise themselves with s.14's provision and implement dual discrimination policies within their internal rules needs to be factored.Therefore, legal certainty will not be fully achieved just by the implementation of s.14.However, this paper believes that the two-year time frame is proportionate when compared to the alternative of leaving intersectional discrimination without any access to recourse.As a result, this paper encourages the introduction of s.14 as the first step of the process to achieving legal certainty in terms of intersectional discrimination recognition.This presents the first step of correcting the blind-spot.

Capacious Approach
Although s.14 arguably opens the door for intersectionality, it is disputably insufficient by itself to incorporate a fully intersectional approach. 171This is owing to its focus on the pre-determined categories present in the Equality Act. 172hereby, it incorporates only one facet of intersectionality which claims that people have multiple identities, whilst failing to notice its other essential claim which centralises the role of intersecting power dynamics.Hence, it omits the peculiar factor of intersectional discrimination as compared to other multiple discrimination forms. 173cordingly, this section proposes that judges exercise a capacious approach to dual discrimination claims that requires them to undertake a relational analysis of the two forms of oppression.This requires placing the claimed grounds, relative to the other, in their historical, cultural and political contexts that led to this specific instance of discrimination. 174Consequently, the unique link between these two structures will become visible to the judges who will be able to appreciate the claimant's distinct experience.To illustrate, under a s.14 claim brought by a Muslim woman, the courts would take Islam (religion) and search within its historical, cultural, and political developments for its relationship with the female sex.Muslims, as a historically marginalised group, 175 intersect with the female sex, as another historically marginalised group, to produce a Muslim female's unique disadvantage.It does not matter whether the court chooses religion or sex as a starting point; the relationship between the two grounds is what matters.
Whereas the current approach focuses on difference, this suggested approach focuses on the structural powers shaping an individual's identity.Hence, it avoids obscuring the 'historical and continuing realities of inequality facing the subordinated group within each ground'. 176This paper acknowledges that this relational analysis inevitably translates to increased costs and an elongated time frame both in terms of the claimant's and the courts' resources.However, this paper is still adamant that the increased costs are unmatched to the experiences of intersectional discrimination victims.Therefore, an approach which focuses on the systematic oppressions, albeit more resource-extensive in terms of costs, time and new expertise, can reflect a more nuanced understanding of intersectionality. 177is approach means that the claimants would not have to suppress their identities to fit into 'arbitrary pigeonholes' 178 in order to claim protection, thereby possibly relieving the identity politics problem 179 discussed earlier.Moreover, this approach makes it redundant to argue for the much-advocated-for 180 open lists measure.The latter would have opened a 'Pandora's box' to litigation claims, 181 which would not have been warmly welcomed by judges.An opens-lists approach entices an unpredictable variety of grounds to be advanced before the court, naturally trailing excessive legal uncertainty.To overcome this litigation floodgate and prevent excessive settlement and compensation costs, a defence justifying discrimination was deemed practical.However, this would have conflicted with the fundamental legal principle that direct discrimination should never be justified. 182Subsequently, the suggested capacious approach accords normatively with intersectionality's overarching aim to overcome 'dominant ways of thinking about discrimination' 183 by bringing the experiences of those marginalised by intersecting structures to the fore.
Even this approach could fall into the trap of assuming homogeneity in the experiences of those at intersecting grounds.The socio-economic status of a transsexual woman, as identified by this relational analysis under s.14, will not automatically be shared by the next transsexual woman.Although judges might find similarities in these women (i.e., they are both subject to the oppressional power dynamics of transphobia and sexism), judges need to be wary not to assume that a previous contextual analysis identically applies to the next.Thus, a case-by-case analysis of the evidential factors is needed to accommodate people's distinct experiences which might end up translating as more time and costs in litigation.Nevertheless, the courts can find comfort in the fact that although these two women's experiences are not identical, they will be similar; hence not every similar case demands a relational analysis generated from scratch.Furthermore, the more cases are brought on different dual combinations, the more the courts will become accustomed to such exercises, thereby increasing efficiency.Relatedly, the precedent-based legal system further facilitates the familiarisation process and thus allows for efficiency.Whether the relational analysis should be exercised by reference to social research or by reference to previous British discrimination jurisprudence is a matter that requires further research.Nonetheless, this paper acknowledges that a 'radical restructuring' 184 from this framework's formal equality approach, which focuses on identities, to one that is based on substantive equality 185 and systematic disadvantage, mandates time for implementation.However, this paper believes that this step towards acknowl- edgeing intersectional discrimination is overdue and is thus worth the time it needs.
Before moving forward, it is wise to note the following.

Positive Action
The widely suggested 186 positive-actions model actively identifies subgroups particularly vulnerable to intersectional discrimination 187 so they can 'easily' 188 be offered employment-related support.This entails positive measures such as targeted advertisements or selected training, which derive their lawfulness from the Equality Act. 189It aims to train and assist applicants from these subgroups to overcome their disadvantage in infiltrating the job market, relative to applicants that are not from these groups.Considering its focus on structurally marginalised groups, it is alleged to be more suited to tackling intersectionality than the complaints-led approach. 190The limits of the proactive approach are widely discussed 191 and are outside this paper's scope.Nevertheless, this section is not persuaded by its overambitions in tackling intersectional discrimination.
As argued earlier, intersectional discrimination experiences differ on a subjective basis therefore remedying them arguably requires a case-by-case analysis.Subsequently, the said model will not be able to identify all victims at the intersections of oppressive systems, considering there are potentially 36 192 combinations and that is assuming homogeneity in each group (which was proved otherwise).In light of the Framework's precedents-based system, the subgroups' identification process can be said to be somewhat efficient, thereby detracting from the value of arguments against it.Nonetheless, having said that, even if all subgroups were identified, offering positive measures to a wide group range is likely to undermine the approach's purpose and will likely increase instances of positive discrimination 193 (which is unlawful under the Equality Act). 194Hence, a reactive approach based on subjectivity rather than a proactive approach which focuses on generality is more suited to correct the framework's blind-spot.

The Comparator: 'But for' to 'But why'
The final reform concerns the comparator test.Although s.14 allows for comparison on dual grounds, 195 and thus constitutes an improvement from the current one-ground comparison, it can be argued that it still impedes intersectional discrimination claims.Under s.14, the claimant's unfavourable treatment is assessed against that of a real or hypothetical comparator who does not share the claimed protected characteristics.Hence, a black woman's treatment would potentially be compared to a white man's. 196This would arguably increase the likelihood of her claim's success because it is easier to prove that a white man would not have been subjected to that same treatment. 197However, this approach raises the difficulty of finding an adequate comparator as explained earlier in Section 2. Subsequently, this unwelcome consequence means that victims will not be able to access justice because their claims would fail a test designed to help them succeed.
To overcome the aforementioned difficulties, this section proposes a move from the current approach predicated, on the 'but for' question, to the one that asks, 'but why'.This shifts the focus to the function that the group membership played in the decision, rather than group membership per se. 198The new approach, proposed by Watt,199 would ask whether group membership was the reason for unfavourable treatment.Hence, if the reason was the victim's uniquely-defined social location (identified under the capacious approach), then discrimination could be established.Additionally, there exists evidence that the British judiciary has slowly welcomed this approach.In Shamoon, 200 Lord Nichols urged tribunals to focus on 'why the claimant was treated as she was' 201 because at times the less favourable treatment and its reason why are intertwined. 202Since then, courts at various levels, including the Supreme Court, endorsed this approach, 203 thereby demonstrating judicial predisposition.Furthermore, this approach possibly progresses intersectional discrimination claims in a less restricted manner than that of a strict comparator test.This is because it potentially avoids the difficulties with (a) finding an adequate comparator and (b) treating a comparator (or its lack thereof) as a decisive factor.Consequently, the 'but why' approach plausibly constitutes a further step towards closing off the blind-spot.
Interestingly and unprecedently, this paper argues that the 'but why' approach is the one which correctly reflects Parliament's intention when drafting the direct discrimination provision.Indeed, the provision, s 13(1) 204 states that: A person (A) discriminates against another (B) if, because of a protected characteristic… [emphasis added].
It appears that the 'but why' approach has always been present in the legislation, but it was subsequent judicial interpretations that diverted it into a 'but for' test.Indeed, this proves that the former approach is better suited to dealing with discrimination cases.To further prove that the 'but for' approach is the incorrect one, the courts themselves at times have acknowledged that comparators are not always available 205 or helpful. 206It could be argued that the courts developed the 'but for' test as a result of the formal equality perspective imposed by the British framework which advocates for the Aristotelian doctrine of equal opportunities.However, the fact that they constantly struggle with locating the appropriate comparator and the fact that discrimination victims are subject to the mercilessness of the strict comparator requirement all attest to the argument that the 'but for' approach is not the right one.Therefore, this calls for imposing the 'but why' question, to follow the legislature's wishes.
To consolidate the aforementioned reforms, this paper proposes a threestage test that is believed to allow intersectionality to enter the current framework.Thus, under a s.14 claim, the test for establishing a dual discrimination claim would be: (1) Did the claimant suffer from less favourable treatment compared to others in the workplace?(this is presumed from the facts presented by the claimant) 207 (2) If yes, was this unfavourable treatment based on the combination of two of the protected characteristics whose interaction with one another attracts disadvantage?(the capacious approach) (3) If yes, was the less favourable treatment imposed because of the claimant's position?(the 'but why')

CONCLUSION
This paper concludes by reiterating that the British Equality Framework, as it stands, lacks an intersectional perspective of human identities.Premised on a single-ground approach, the framework fails to recognise the experiences of those existing at the intersections of structural oppressions.This has been proven to produce several damaging conceptual, practical and psychological effects on those individuals.It remains an unsatisfactory approach, that the government acknowledges this protectoral gap, but is doing nothing to address it.Having analysed the Framework in the second section via an intersectional lens, it was apparent that the wording of direct discrimination under the Equality Act 2010 lacks an intersectional outlook.This was then seen to spill over to the judicial approach concerning intersectional discrimination claims as evidenced by the Bahl . 208and O'Reilly 209 cases.Furthermore, the comparator requirement and its strict judicial application were argued to impede the progression of intersectional discrimination claims.The section then concluded that the current single-axis framework is intersectionality-blind.Accordingly, if the Equality Framework wishes to uphold the values it claims to protect such as human dignity, equality, and justice, then the issue of intersectional discrimination needs to be taken more seriously.This in turn requires the understanding of intersectionality, as explained in the first section, as a means to recognise the origins of the blind-spot and subsequently address it using the proposals advanced in the final section.The reintroduction of s.14 proposed in the final section accompanied by the threestage test is believed to potentially incorporate intersectionality into the Framework. 208Bahl v Law Society (no 15). 209O'Reilly v BBC (no 13).
Sheena Smith, 'Intersectionality and Law: Theoretical Issues' (2011) European Training and Research Centre for Human Rights and Democracy 1, 22.