Review: Engineering Equality: An Essay on European Anti-Discrimination Law by Alexander Somek

Dr. Iyiola Solanke

The evolution of anti-discrimination law (ADL) has been an incremental affair: Britain was the first European country to introduce non-contractual legal protection against discrimination after WWII – in 1965 it passed its first Race Relations Act which provided a limited remedy for protection against racial discrimination in public places. This Act was amended four times – in 1968, 1976, 2000 and 2003 (Solanke, 2009). In 1975, protection against sex discrimination was introduced. Since then, legal remedies in Britain have expanded to cover age, disability, gender reassignment, marriage and civil partnership, pregnancy, sexual orientation, religion and belief. These are now brought together in a single statute – the Equality Act 2010 (EqA 2010). The EU began its foray into ADL in 1957: the Treaty of Rome prohibited discrimination on the grounds of nationality – this was the logic underpinning the ‘four freedoms’ (free movement of persons, goods, services and capital) – and on the grounds of sex. In 1997, after years of lobbying by civil society organizations across the member states, it introduced a legal amendment to prohibit discrimination on the grounds of age, disability, race and ethnic origin, religion and belief and sexual orientation (Art 19 TFEU). Subsequent Directives, most notably Race Directive 2000/43 and the Employment Equality Directive 2000/78, have obliged the member states to introduce legal prohibition of discrimination on these grounds into their legal systems. These systems of protection did not develop entirely independently – for example, the amendments to the British Race Relations Act in 2003 were made in response to the EU Race Directive 2000/43.

In this ambitious book, Engineering Equality, Alexander Somek attempts a root and branch analysis of the evolving anti-discrimination law of the European Union, interrogating both its philosophical premises and its current practices. Somek has much to say, but little that is positive, about ADL and its advocates. The mechanical image evoked by the title should prepare the reader for his impatience with the theme. He wastes no time dismissing ADL as the ‘darling subject of ‘progressive’ legal scholars and steadfast libertarians alike’ (fn 2). He asserts that these groups are undermining their own goals, for the more successful ADL, the weaker social policy in the EU becomes: its ‘ascendancy is concomitant to a displacement of that full blown social policy which would be required for its own realization’ (18). Further into the text, he describes ADL as ‘a field of law whose mode of realization is also the cause of self-obfuscation’ (93) and ADL norms as ‘having the same deadening effect on the perception of social reality as moralistic attributions of evil schemes’ (105). His stance should not deter the reader: the book warrants a close read of its carefully crafted argument. My own conclusion after doing so is that it has a number of strengths and weaknesses. I will discuss three strengths (the EU-level of analysis; the clear analytical framework and the challenge to neoliberalism) and three weaknesses (the lack of historical perspective, conflation and universalism).

The topic of this book is clearly EU anti-discrimination law. The importance of this may be lost on those with limited interaction with EU law or the EU. There is still a dearth of literature that approaches EU law on its own terms, without departure from or deference to the national legal systems. This may be because there is still a world of work to be conducted on understanding the interaction and mutual influence between EU and national law.  It is therefore refreshing to read a monograph which tackles directly a specific field of EU law, especially one as interesting, important and dynamic as anti-discrimination law.  The commitment to the European Union level of analysis allows Somek to produce an informative review of social measures in the EU and develop a trenchant of critique which may have been weakened by the inclusion of multiple analytical levels.

His analytical framework is targeted towards explanation of why ADL in the EU is not only an impoverished form of social legislation but also the antithesis of social policy. He describes ADL as a self-defeating project that represents ‘social policy in the state of its disempowerment by competitiveness.’ As such, it ‘cannot supply the core of a social model’ (18) or heart of a European welfare state. It is indeed, I think, the welfare state that Somek ultimately seeks to defend (fn 195). His analysis therefore incorporates what he describes as an ‘internal’ exploration of the objective of ADL, its key concepts of ‘direct’ and ‘indirect’ discrimination, and the methods adopted by ‘first’ and ‘second’ generation ADL.

From his internal perspective he concludes ADL should be read as ‘law that accords priority to the redistributive point of view’ (16). His adoption of this admittedly narrow view of ADL is justified as the ‘best’ (89) way to understand this type of law in order to give any meaning to its core concept of ‘direct discrimination’ (93). From this stance he identifies the central design flaw of ADL: its ‘normative deficiency’ (12).  This key idea is developed over three chapters. Somek uses it to convey the problem that ADL ‘does not regulate enough’: its rules are too few and so they ‘fail to deliver’ (12).  There are two strands to this deficiency, which has its source in the ‘hegemony of neoliberalism’ (84): first, the failure to ‘recognize any distributive patterns’ (17) and secondly, a lack of understanding of ‘pre-normative intentions’ (17). In relation to the former, he means that ADL redistributes with limited de-commodification and in relation to the latter, Somek claims ADL is ridden with ‘an inescapable, however often disclaimed, concern with the intent of the agent’ (90) which prioritizes the individual and ignores politics and power, transforming social problems into a ‘lack of self-observation on the part of an agent or organization’ (92).

This normative deficiency is used in turn to explain the operational failure of ADL. The ‘second generation’ tools used to secure redistribution, namely the ‘deontological’ focus on ‘agents, their responsibilities, their failures and intentions’ (93) is integral to the normative deficiency discussed above.  EU ADL has had to ‘move from law to management and training’ (82) – from hard norms to ‘equality management’ (12) in the form of soft, innovative, voluntary action – because hard norms have been insufficient to achieve its goals. The retreat from law has both a macro and micro dimension but common to both levels is the move from legislation to management, and a ‘high degree of ‘pedagogicization’’ – practical training and moral improvement’ to change attitudes and social understandings (13). The macro level in the EU includes the creation of the ‘triadic relation of the European Commission, member states governments and civil society’ (13). At the micro level these ‘second generation’ tools are used to re-organise the workplace and transform employees into unwilling ‘agents’ of equality. Somek argues that developments in the EU mirror changes in the USA where ‘the narrow confines of law are imagined to be supplanted by social learning processes’ at the workplace level. He finds it ‘remarkable’ (13) that structures proposed for the US are to be ‘realized in Europe in the context of joint efforts of interested actors (‘stakeholders’) and national administrations’ (13).

The conceptual and operational analysis is set within a systemic critique: ADL according to Somek is a fitting corollary to the consumptive focus of neo-liberalism, which ‘treats the market not merely as one sphere among others but rather as the universal law governing our social existence’ (14). It is the neoliberal  perspective that places economics as the centre of the social sciences, and it is the neoliberal left who bear responsibility for designing ADL from this economics—centric position. The ‘chief social virtue’ (14) for the neoliberal-Left is adaptability; this is because they believe that ‘whoever wants to live well needs to adapt to market demand.’ They are therefore committed to ‘rectifying adverse distributive consequences that originate from the influence of factors that seriously hamper or even prevent adaptation’ (14-15). It is this ‘equality of adaptability’ that is to be engineered to remove its interference in market co-ordination.

This engineering of equality is ultimately a process of ‘moral purification’(15) the creation of a world ‘inhabited by better people – and not, a world where power differentials in the relation of capital and labour have been readjusted such as to approach evermore closely a sustainable equilibrium.’ (15) This is the frustration at the heart of Somek’s tome, which he insists is not a ‘diatribe against the noble cause of protecting people from discrimination’(18) – his target is its design. He objects not to its goals but to where the burden falls for this providing protection from discrimination – increasingly upon the shoulders of the ordinary worker who is ultimately also the final victim of neoliberal capitalism. The worker is therefore caught in a pincer movement, disempowered by the neo-liberal left and neo-liberal capital.

Whilst one may sympathise with this point, it is questionable whether a robust defence of the worker (which includes those who suffer discrimination) can be supported upon the narrow basis of ADL, and indeed whether ADL in general can be identified as the fulcrum of a nascent EU social policy, or be held responsible for the demise of collective action – indeed, the evolution of EU ADL is arguably an example of this (Solanke 2009). As noted by Noah,[1] sending jobs abroad did not only lower wages, but also weakened unions.

This brings me to a first criticism of this work – the absence of time. The strict focus on the EU incorporates traits into Somek’s analysis that he condemns in neo-liberalism: it is both apolitical and ahistorical. ADL cannot be analysed in a vacuum – if studied in the absence of time and space will indeed appear as deficient and irrational as Somek argues. Whilst gender equality was the original form of ADL in the EU and has become the most successful and prominent form internationally, it was not the original focus of these laws. It is impossible to understand the goals and concepts outside of world history, in particular the Atlantic slave trade, European colonization of Africa, Asia and the Caribbean, and the Holocaust in Germany. It is clear why Somek does not mention these, but the failure to do so means his analysis suffers its own deficiencies which resemble the neoliberal system that he condemns.

The failure to consider history and politics leads Somek to what I think is a second weakness – a conflation of ADL in the EU which leads him to over-look differences and over-extend his theory.  Firstly, Articles 18 and 19 TFEU appeared separately in EU law and given the continued existence of two articles clearly retain their separate jurisprudential paths. Somek does not present strong evidence that the acknowledged competitive logic underlying Arts 18 & 157 TFEU has infiltrated Art 19 TFEU and thus EU ADL in general – although it cannot be denied that this might happen in the future. It is simply too early to tell – since 2000 there has been just one case of race discrimination (Feryn) and a limited number on age and disability discrimination: what Somek currently presents as EU ‘ADL’ is in fact overwhelmingly EU nationality and sex equality law. It is therefore questionable whether he should speak of speak of EU ADL in general when his analysis is overwhelmingly based upon discrimination cases in these fields. The conflation allows him to posit and dismiss EU ADL per se as the key threat to social policy in the EU but empirical evidence suggests that this may be premature.

Somek also ascribes a questionable universalism to ADL. Take for example, his discussion on the role of intent in direct discrimination – whilst this may be central to gender rights jurisprudence in the USA, judges in Britain have stressed in sex and race discrimination cases from James to the more recent JFS that intention –motive – plays no part in determining unlawful direct discrimination. The question of ‘but for’ is not one of causality but of connection between a protected characteristic and action, regardless of the objective of the putative perpetrator. As the judges of the UK Supreme Court explain at length in JFS, theirs is not to reason why. The assumed universality of ADL also finds expression in Somek’s assertion of its link to social policy. This may be true in relation to gender equality at the EU level and in some EU member states (such as Germany) but it does not apply to the protection from racial discrimination anywhere in the world. The rationale for anti-racial discrimination law has always been located beyond the welfare state – it was not on the list of risks that should not ‘lie where they fall’.

When looked at closely therefore, his core argument seems to be that sex and nationality ADL in the EU cannot provide a foundation for EU social policy. He may be correct in this. What is more interesting is that in developing his argument Somek can ignore the history and politics of ADL internationally and speak of it as a whole with hardly a nod to its foundation in the prohibition of racial discrimination. Here we have a book on discrimination that is silent on race. This is noteworthy – how can ADL be detached from its foundational moorings? Is this a nod to ‘post-racial’ politics? The casual detachment raises a fundamental question of ADL: what is its rationale in the 21st century – how is its existence to be explained in the absence of race? Can it be explained in the absence of race?

In Britain, the US and the EU the original guiding principle for when a distinction would amount to discrimination was the concept of immutability: protection would be provided for detriments arising in consequence of attributes – such as skin colour or sex – over which the individual had no control. However, as the protection from discrimination has expanded, the power of immutablity to explain ADL has weakened – the logic of anti-discrimination law has not been reviewed as ADL has been reformed (Solanke 2009 & 2011). Thus, in the case of EU law, the extension of ADL from nationality and sex to race, ethnicity, age, sexual orientation, disability, religion and belief was not underpinned by a clear rationale. Somek has identified and exploited the weakened foundation underlying ADL: this growing philosophical hole at the heart of ADL accommodates his 1) positioning of ADL under the mantra of social policy, 2) reduction of its goals and 3) condemnation of its ascendancy as the demise of the welfare state.

Taking the book as a whole, I think it is worth reading, especially perhaps for those who disagree with it. I say this because Somek’s sophisticated argument, in exploiting the absence of a clear logic underpinning ADL, illustrates the importance of a coherent rationale to guide the evolution of ADL in the EU. His book demonstrates well how in the absence of this, ADL is vulnerable to public attack. It should therefore remind those committed to anti-discrimination and equality of the need for a strong logic to secure the future of ADL as an effective tool to tackle entrenched and durable inequality in the EU and elsewhere. They should use the book to begin an essential debate on the foundation and rationale for ADL in the 21st century, that recognizes its history in the 18th and 19th.

[1] T. Noah (2012) The great Divergence: America’s Growing Inequality Crisis and What We Can Do About It’ (Bloomsbury Press) reviewed by A. Hacker New York Review of Books (April 2012)

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