Contested issues & Intersectionality in Equality, Diversity and Inclusion

David Ruebain is an experienced EDI Lawyer, Policy Advisor & Researcher. He was a partner in a law firm leading a specialist department in Education, Equality and Human Rights law before becoming the first Director of Legal Policy at the Equality & Human Rights Commission. For the last 12 years he has worked in higher education and is currently a Pro-Vice-Chancellor and Law Professor. In this blog, he explores contested issues in equality, diversion and inclusion and shares suggestions for addressing this in the workplace.

The legislative context

Probably the first specific piece of equality law in Britain was the Race Relations Act 1965. With hindsight, it provided extremely limited protection; effectively only outlawing discrimination in “places of public resort.”  Over the subsequent 45 years, the breadth and depth of legal protection was developed in many ways, culminating in the Equality Act 2010. This legislation recognises 9 protected characteristics (identities) which are afforded a range of rights and duties covering many aspects of employment, goods, services, facilities, education and public bodies. Indeed, further legal protection and complication comes through the interplay of these rights and obligations with those in other legislation, including that relating to human rights, freedom of speech, criminal law, employment and various requirements of the public sector.

This welcome recognition and extension of legal powers to address chronic underrepresentation and disadvantage is nonetheless complex and can result in confusion and even difficulty in advancing best practice. At worse, it may give rise to conflicts between competing groups.

Intersectionality and competing groups

We have seen many examples of barriers to equality, diversity and inclusion and conflicts between competing groups over the years. For example, between:

• Claims based on religion and belief as against those based on LGBT+ (regarding bed and breakfasts in England and bakers in Northern Ireland),
• Some feminists and LGBT+ activists (concerning arguments over the meaning and implication of sex and gender),
• Disabled people and feminists (over abortion rights), and even
• Different groups of people advocating from different perspectives of the same identity (such as between disabled people regarding rights to assisted suicide and, in an interesting case that went through the courts, the competing rights of different Jews to access a school).

Sometimes these conflicts reflect intergenerational changes in understanding and perspective. Sometimes they’re about what is felt as a “safe space”.  Often, they feel existential and critical!

Regardless, engaging positively with this complexity is essential, not only to effectively navigate them but also along the way to gain a greater understanding of the lives of others, develop nuanced and impactful strategies, policies and practices and hopefully also build compassion and allyship.  Avoiding difficult issues in the hope that they’ll disappear rarely works and may at best only temporarily push matters under the carpet.

Suggestions for addressing contested issues in DE&I

So here are some suggestions for facing and handling contested issues in equality, diversity and inclusion in the workplace:

• Engagement: Engagement is key. This starts with active listening, which is not simply staying silent whilst someone is speaking! This means hearing and understanding not just the words but also the context and background, what is behind the viewpoint.
• Discussion: Encourage discussion of ideas, not people. For example, “that view is problematic to me”, rather than “you are problematic to me”! Indeed, if one takes structural oppression and inequality out of the picture, there is arguably no inherent conflict between any two humans.
• Fairness and dignity: In the UK, equality law is based principally on concepts of fairness but interestingly, much human rights law instead focuses on dignity. Using that principal as a basis for consideration can sometimes help avoid conclusions which maintain conflict.
• Competing groups: At the same time, avoiding conclusions which represent a “zero-sum game” – “for my identity to be respected yours must be denied” is never a long-term solution. That means that easy solutions may not be immediately identified.
• Conflict resolution: Conflict resolution does not require agreement! We don’t have to accept everything to respect different identities and oppose all forms of oppression.
• Allyship: Instead, consider developing allyship programmes which recognises the inherent humanity of the “other”, irrespective of their identity.
• The Equality Act’s Public Sector Equality Duty: For public bodies, use the Equality Act’s Public Sector Equality Duty, particularly that limb which requires the promotion of good relations. There are many innovative and effective programmes that have been implemented through compliance with this.
• And finally, advocate compassion in the workplace.