Abstract

The central case methodology captures the features that something must have in order for it to be that thing. As applied to the field of discrimination law, the methodology helps identify both the central cases of discrimination as well as the key features of discrimination law which address such discrimination. Theorists typically conceive central cases of discrimination law from norms prohibiting discrimination on particular grounds, such as race or sex. This gives the impression that discrimination based on more than one ground is not a central case of discrimination or not prohibited by discrimination law. This article challenges that impression. It argues that, although discrimination based on a combination of grounds (‘intersectional discrimination’) is considered no more than a peripheral case in discrimination law, it should actually be considered ‘more than’ a central case itself. This is because it is epistemically able to capture discrimination in a wider sense. With this, the article seeks to orientate the theoretical discourse in discrimination law to the correct application of the central case methodology which necessitates the consideration of intersectional discrimination.

Highlights

  • In his influential account of discrimination, John Gardner proclaims that: ‘If you turn people down for jobs because they are women, or refuse to rent flats to people because they are black, you wrong those people by discriminating against them.’[1]

  • The article seeks to orientate the theoretical discourse in discrimination law to the correct application of the central case methodology which necessitates the consideration of intersectional discrimination

  • This article has argued that intersectional discrimination appears to be no more than a peripheral case in discrimination law, especially in the selection of central cases from which discrimination law is theorised, it may be analogised in reference to the features of discrimination law those cases help identify

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Summary

Introduction

In his influential account of discrimination, John Gardner proclaims that: ‘If you turn people down for jobs because they are women, or refuse to rent flats to people because they are black, you wrong those people by discriminating against them.’[1]. Closely linked in most accounts.[20] Colm O’Cinneide describes the link elegantly: the ‘central case’ of discrimination, [is] the core or paradigm form of discriminatory behaviour, whose moral ‘wrongness’ justifies legal intervention to protect potential victims and constitutes the primary rationale for the system of discrimination law taken as a whole.[21] Seen this way, discrimination law is perhaps no different from other areas of law where the central case methodology is used to both understand the nature of moral wrongness of, say, a particular crime like murder and to justify how it is prosecuted and punished in criminal law.[22] this article is about the nature of discrimination—including intersectionality—as well as about the nature of discrimination law—including norms which go beyond the prohibition of single-axis discrimination. The hope is that this corrective will, in turn, orientate theoretical interventions in discrimination law towards intersectionality

Central Case Methodology
Central Case of Discrimination Law
Case Selection
Features of Discrimination Law
More Than a Central Case of Discrimination Law
Findings
Conclusion

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