The battle against ethnic discrimination: realizing the (utopian) promise of non-discrimination law

ABSTRACT

In this article, we argue that the individual rights strategy, the most common way to realize non-discrimination law, is inadequate when it comes to combatting ethnic discrimination. We start our paper by analysing the obstacles for victims of ethnic discrimination to initiate and conduct a legal procedure and thereby mobilize the law. These obstacles consist of the complexity of the concept “ethnic discrimination” in practice as well as the challenges of the “individual rights strategy”. Additionally, we investigate if there are other, better legal pathways to combat existing discriminatory practices, focusing on ethnic profiling and institutional racism (i.e. systemic discrimination on the grounds of ethnicity) by governmental organizations. Two alternative legal pathways to combat discrimination are presented: (1) more attention for strategic litigation on behalf of victims of discrimination, and (2) more attention for proactive obligations in the law, such as imposing public sector equality duties on organizations.

KEYWORDS:

• Non-discrimination law
• individual rights strategy
• legal mobilization
• public sector equality duties
• strategic litigation
• ethnic profiling

Introduction

In 2018, while entering the Netherlands at Eindhoven Airport, Mr Bamenga was stopped by the Dutch border police. This was not the first time that he was stopped. Mr Bamenga was born in Zaire, now the Democratic Republic of Congo. In 1994, he fled to the Netherlands. There, he acquired Dutch citizenship and became a lawyer, a political activist, and a policy officer. Mr Bamenga is a middle-aged man with dark skin colour. According to him, his dark skin colour is the reason that – time and again – he is stopped by the border police when travelling to the Netherlands. He claims that this is ethnic profiling and discrimination. Ethnic (or racial) profiling can be described as: “The use by the police, with no objective and reasonable justification, of grounds such as race, colour, language, religion, nationality or national or ethnic origin in control, surveillance or investigation activities”. (ECRI 2007, 4)

The standard of non-discrimination (“any discrimination based on any ground (sex, gender, etc.) shall be prohibited”) is clear and fulfils its norm-setting character. Unlike some other legal standards, it is also fairly widely known. The prohibition of discrimination is laid down in several international and European treaties and in most national constitutions of democratic states. Still, there is a huge discrepancy between non-discrimination law in the books and what happens in practice. In the current article, we zoom in on the practice of racial or ethnic discrimination and the role of the law therein, in line with the theme of this special issue. Ethnic discrimination is widespread; in a recent survey by the Fundamental Rights Agency (FRA), 38 per cent of the respondents (who were members of EU minority communities) indicated that they had felt discriminated against due to their ethnic background in the previous five years (EU Fundamental Rights Agency 2017). At the same time, there is no legal, political or societal debate with regard to the existence of legal provisions on non-discrimination law. How can we thus explain this difference between the law in the books and law in practice, when it comes to ethnic discrimination and how can it be addressed?¹

For the current research, we have adopted a socio-legal perspective on the law and practice of ethnic discrimination. In doing so, we have used relevant literature from the (socio-)legal field as well as relevant case law to establish, firstly, why there is such a divergence between non-discrimination law in the books and in practice. Secondly, we present certain alternatives based on a combination of earlier proposed ideas and newer perspectives. To set the scene and structure our article, we use the three-level framework on the practice of discrimination developed by Phillips (2010; see also Orsini et al. 2022). Most relevant to our argument are the micro-, individual level, and the meso-, institutional level. The combating of discrimination in the legal sense is, as our article demonstrates, left to individuals (see also Makkonen 2012, 272–277). Our suggestion is that it is more useful to either “lift” the capabilities of the individual through collective action, or target the meso-level, specifically “institutional processes and practices” (Phillips 2010, 177) rather than individualized discrimination, through the implementation of Public Sector Equality Duties.

There is always a gap between the law in the books and compliance with it in practice, so-called “law in action”. This is inevitable: the law is general and needs to be interpreted. Where it concerns non-discrimination law and ethnic discrimination, we argue that this gap is even more significant. This is related first and foremost to the concepts of discrimination and ethnicity (and in non-discrimination law, the related concept of race), which are complex. For example, when it comes to discriminatory practices, how do you know the discriminatory intent of an actor? Moreover, when it comes to ethnicity, how can a person be classified to be of a certain ethnic origin? The combination of these two concepts and their complexity make non-discrimination law difficult to apply in practice. Furthermore, the prohibition of discrimination is formulated in different ways in treaties that prohibit discrimination and the treaty bodies that interpret these concepts conceptualize them in different ways (Makkonen 2012, 237–240). We will elaborate on this first. Secondly, the way in which discrimination can be challenged in the legal sense is through the individual rights strategy, which raises issues for the victims of discrimination.

This article then delves into possible solutions for the problems identified. We discuss two alternative pathways to potentially more effective non-discrimination law that we consider suitable, namely the use of strategic litigation (especially in a collective/class action) and Public Sector Equality Duties (as established in the United Kingdom and Ireland). The former is relevant, as it will be shown that it tackles several of the problems that can arise with regard to the individual rights strategy. The Public Sector Equality Duties shift the responsibility of guaranteeing non-discrimination in practice to meso-level actors. Finally, we present some overall findings as to the role of the law when it comes to the practice of ethnic discrimination. Throughout the article, the case of Mr Bamenga is used to exemplify certain conceptual and practical problems identified in the literature.²

Limitations of non-discrimination law on race/ethnicity

Existing scholarship enumerates three main reasons why the role of the law is limited in achieving its purpose. Firstly, the legislator is simply not able to properly oversee all cases that will fall within the scope of a law. Scheltema (2021) explains why the legislator is not omniscient: society has become far too complicated, the legislator’s view of humanity is unrealistic, and laws are being made for an unknown future. As a second reason, “legislation cannot make mores” (Sumner 1907 (1960)) or otherwise formulated: the law cannot change hearts and minds (Böcker 2020). Laws that have moralistic intentions are only effective if people in principle agree with them. Thirdly and lastly, the law cannot enforce itself. Despite the binding force of the law, mechanisms of enforcement are restricted. Therefore, expectations of the possibilities of law as an instrument for social change should not be too high (Rosenberg 2008). There is always a tendency towards conservatism and to maintain the status quo, which hinders effective implementation of (new) laws.

These three reasons are also relevant for the gap between non-discrimination law and the practice of discrimination, specifically ethnic discrimination. As stated above, when it comes to the prohibition of discrimination, the gap is even larger than usual, as the practice of discrimination is complex and there can be a high burden of proof on individuals. There is an evident contrast between the principle of equality and the omnipresent practice of discrimination. Moreover, with regard to non-discrimination law, another obstacle for its effectiveness should be kept in mind; discrimination is often inherent in law itself. The law makes distinctions between groups such as workers and unemployed people, healthy and sick people, the young and the old, migrants and citizens. So when does a legal distinction end and where does discrimination start?

The discussion above warrants a closer look at the limitations of non-discrimination law and specifically the prohibition of ethnic discrimination. The sections below add two additional problematic aspects of enforcing the (utopian) ideal of non-discrimination law on top of the matters already mentioned and then elaborates on each of these aspects. Firstly, the prohibition of ethnic discrimination, although widely known, is quite complex due to the concepts of discrimination and ethnicity(/race) which are difficult to define. Secondly, non-discrimination legislation focuses on the so-called “individual rights strategy”; it is up to the victim to denounce discrimination. This strategy, as is shown below, makes the enforcement of non-discrimination law difficult in practice.

Complexity

Complexity of the prohibition of ethnic discrimination exists at least with regard to two central concepts: the concept of discrimination and the concept of ethnicity. This complexity leads to differences in interpretation. Discrimination, firstly, is about making a non-justifiable distinction. Making distinctions is quite common and, as stated before, even the law itself makes distinctions all the time. The question is, however: when does a distinction lead to discrimination? The seemingly simple answer that Aristotle gave to this question (“when equal cases are treated differently and unequal cases are treated equally”) is not as simple as it seems. What are equal cases, and what difference is a relevant difference? Moreover, distinct formulas are used to express the norm of non-discrimination in civil and criminal laws and for different grounds of discrimination. For example, different protected grounds (such as race, language, colour) are mentioned in criminal and civil laws. Differing explanations of the prohibition of discrimination are also used for various social fields. The relation between these different norms is not always clear.

Additionally, besides direct discrimination, the much less clear concepts of indirect discrimination and institutional discrimination are used in the law. Direct discrimination entails making a distinction between individuals directly based on a protected ground (such as ethnicity of gender).³ An example of this is the Sejdic & Finci case, in which the ECtHR judged that the ineligibility of a Roma and Jewish applicant to stand for election to the House of Peoples of Bosnia and Herzegovina lacks an objective and reasonable justification. Therefore, the prohibition of direct discrimination was breached. This type of discrimination, especially if it takes place on the grounds of ethnicity, is in most cases difficult to legally justify. Indirect discrimination and institutional discrimination refer to seemingly neutral practices that put people of a specific protected group at a particular disadvantage.⁴ Article 2(2)(b) of the EU Race Directive in this regard states for example:

indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

These forms of discrimination are already difficult to prove, but it is even harder in situations in which there is no clear actor and discrimination is a consequence of the system. Legally speaking, who does the victim take to court?

Besides that, the concepts of race and ethnicity are very complex, as various contributions in this special issue also make clear (see Van der Tol and Becker 2024; also see Bonilla-Silva 1997). It is not useful to reiterate full histories of scientific and social discussions on the concepts of race and ethnicity, nevertheless, for the purpose of our legal discussion on racial and ethnic discrimination, some attention must be devoted to these concepts. When it comes to race, ever since the scientific book of Montagu (1974) and UNESCO’s Statement on Race (1950), it has been widely accepted that race is as such not a biological phenomenon but rather a social construct. Despite some subtle presumptions that small racial and ethnic distinctions can be relevant in certain biological contexts (see Foster and Sharp 2002), there is no evidence for the existence of separate races (Makkonen 2012, 19–22 and 245). In the legal sphere, however, the concept is still relevant, especially regarding the phenomenon of racial discrimination (see most importantly the UN Convention on the Elimination of All Forms of Racial Discrimination). Moreover, the European Court of Human Rights adheres to the term.⁵

Ethnicity, on the other hand, has to a certain extent replaced the concept of race, despite its many different conceptualizations (Makkonen 2012, 24–25 and 245; Van der Tol and Becker 2024). This replacement could be a way to avoid the controversial term race. Ethnicity can refer to components of skin colour, culture, migration background and religion. This concept seems more related to social identity (including aspects of being, feeling, doing, and knowing, see Verkuyten 2018). In fact, ethnicity seems to be used mainly to distinguish the “established” from the “outsiders”, as per Elias and Scotson (1994), and is sometimes used to soften the language around racial issues. Ethnicity as such is not a legal concept in the Netherlands, where our case example is situated. Although there can be a connection between ethnicity and nationality, this link is sometimes difficult to make. Messing and Pap (2024) deal extensively with the problem of conceptualizing and operationalizing ethnicity, in their case of Hungary. Most people have mixed and fluid identities. They can, for instance, be of colour, Dutch and Muslim at the same time. Identities can unjustly be ascribed to people based on outer appearances and identities can be denied by communities or authorities. As Van der Tol (2024) argues in this special issue, constitutional law fails to integrate ethnic identity as a proper personal characteristic, beyond group identification, and beyond the dynamics of migration, integration, and assimilation. Telling is that one of the most important non-discrimination documents in the European Union, the Racial Equality Directive (2000/43/EC) does not contain a definition of racial or ethnic origin (EU Fundamental Rights Agency 2018, 197).

In the case of Mr Bamenga, the Dutch border police stated that it was not just his skin colour, but his skin colour combined with the way he dressed (a business suit) and the way he walked (very fast) that caught their attention. Apparently, illegality was attributed to him as the border police does not expect black people to wear nice suits and as they find it suspicious if black people are walking fast. The combination of these characteristics formed Mr Bamenga’s supposed identity. Moreover, the judgment of the lower court in the case of Mr Bamenga made clear that even among judges, confusion exists regarding the relationship between ethnicity/race/skin colour and nationality. In short, the judgment of the District Court stated: “Dutch people are normally not black”.⁶ (Grütters and Terlouw 2021; see also Lauwers 2024)

The individual rights strategy

The other significant limitation of non-discrimination law is that it is founded on the so-called individual rights strategy. This means that it is for the individuals and their agency (meaning the capacity of individuals to fulfil their potential) to pursue legal action. This is not very effective, as there are many obstacles for victims of discrimination to mobilize the law and litigate successfully. As Makkonen (2012, 280) states: “The greatest single obstacle for making major advantages in the fight against discrimination is the individual orientation of the law and the consequent individualization of the fight”. The first obstacle individual victims have to surmount is that of access to justice. In order to bring a case before a court, victims have to take a lot of steps. According to Felstiner, Abel, and Sarat (1981), a conflict needs transformation before it can be brought to court. They call the steps needed for this naming, blaming and claiming. Naming discrimination means marking a specific action (or non-action) as discriminatory. For this, the victims must first realize that there is unequal treatment and name it as such. Therefore, individuals need to have knowledge of equal treatment legislation, but that legislation is, as stated above, complex. Taken together, these obstacles are particularly problematic for individual victims of discrimination. Our example illustrates that:

Is it discrimination when Mr Bamenga is confronted with a passport control at the airport? This depends: is this happening because of his skin colour or is it just a coincidence? How can Mr Bamenga know?

As Böcker (2020, 26) states: “Legislation prohibiting discrimination may [thus] be effective against overt forms of discrimination. However, other (more covert, indirect systemic) forms of discrimination, if unlawful at all, are practically impossible to recognize for individual victims”. This ties into a second aspect of naming, which is that the victims must have knowledge of the facts, the situation and the context. This seems simple because the victims self-evidently know their own situation, but they must also be able to compare their own situation with that of others. This is not always easy, as for example the border police may know how often white and coloured people are stopped, but the individual traveller does not know. Moreover, individuals can regard assets that set ethnic or racial groups apart differently (Nowicka 2018). This has consequences for whether a person falls within a certain category and is, therefore, discriminated against based on this categorization. As a third aspect, it is necessary for the victims to place themselves in the role of a victim. That is by no means easy for everyone. Minnow (1990) has called this the dilemma of difference. The applicants are in the unpleasant position of having to emphasize the grounds for their unequal treatment, such as their race or ethnicity, gender, sexual orientation, while they precisely believe that those identity features should not be relevant.

The next step is blaming: this means holding another party responsible for unequal treatment. This is not an easy feat either. Firstly, the victims need to know who is responsible. Who is the perpetrator? This is, at times, not so clear, for example, if discrimination is caused by the system, i.e. systemic or institutional discrimination. An example of such institutional discrimination is the principle “last in first out” in case of reorganizations, which is disadvantageous for newcomers – who are often labour migrants and other minority groups. Ethnic profiling is also an example of this. In the case of Lingurar v. Romania the ECtHR confirmed this by stating:

The Court is mindful of the evidence produced by the parties and the available material which show that, in the respondent State, the Roma communities are often confronted with institutionalised racism and are prone to excessive use of force by the law-enforcement authorities.⁷

Moreover, the victims need to know who can be held responsible under the law. Even if the perpetrator is known, not every perpetrator can be held responsible under the law.

Mr Bamenga cannot hold the individual border guard that stopped him legally responsible. Individual border guards are not standard addressees under equal treatment legislation.

Under, for example, the EU Racial Equality Directive⁸ and the EU Directive for Equal Treatment in Employment and Occupation,⁹ only employers and providers of goods and services, but not private individuals, can be held responsible. An employer can be held responsible for the behaviour of his employees, as he must ensure a discrimination-free working environment. This can be translated back to the micro- and meso-levels developed by Phillips (2010). Non-discrimination law, in this regard, targets entities at the meso-level. Yet this means that an individual confronts an anonymous actor.

The final step is claiming. That means starting a procedure, either internally or externally with a National Human Rights Institute or a judge, which is not easy either. An employee, for example, will have little desire to complain about their employer. Mobilizing discrimination law in case of power relations requires considerable courage from the victim (see also Bumiller 1987). The employee may even fear that lodging a complaint will worsen his relationship with his colleagues. The relational distance, as Black (1976) calls it, between parties is narrow in working relationships and the narrower the relational distance, the less attractive it is to litigate, in order not to jeopardize this relationship.

In addition, a complaining employee may have a fear of victimization. Victimization means that someone is further disadvantaged if he files a complaint, for example, if the plaintiff and not the perpetrator is placed in another department or the plaintiff is confronted with demotion due to the complaint. In EU non-discrimination law victimization is explicitly prohibited, but that usually does not take away the fear of it.

When it concerns discrimination by governmental organisations like the border police in the case of Mr Bamenga, the step of claiming is even more difficult. The Dutch Equal Treatment Committee is not competent to deal with cases of discrimination by governmental organisations, so the only option here was bringing a case for a much less specialised civil court.

If the individual victim has finally overcome all the thresholds of naming, blaming and claiming and starts a judicial procedure, the problems are not over yet, as the claimant will face further challenges throughout the procedure. First and foremost, when it comes to equal treatment litigation, the victim is almost always the one-shotter (inexperienced litigant) up against a repeat player (experienced litigant) (Galanter 1974). Examples are an employee versus an employer (a multinational), a buyer versus a seller (a group), a tenant versus a landlord (a housing corporation), a teacher versus a school board. As stated previously, equal treatment legislation does not offer the option of legal proceedings against private individuals, who may be one-shotters as well. According to Galanter (1974), repeat players have a whole range of strategic advantages. They do not only have more resources: knowledge, money, experience and better access to expert legal assistance (large firms even have company lawyers), but also more opportunities to focus on future profits. They have the possibility of avoiding precedents, by not pursuing a case or settling it amicably.

Moreover, there is the obstacle of delivering evidence. This is an important impediment for victims of discrimination. How does one prove an insult and that the insult was due to one’s ethnicity? And how does one show that a promotion was refused because of skin colour or a rental property was refused because of religion? In order to accommodate potential victims of discrimination, the European Court of Human Rights (ECtHR) has lowered the burden of proof. For example, in the case of D.H. and Others v. Czech Republic (2007) the ECtHR accepted statistical evidence that children of Roma origin were put in special schools more than other children. Accordingly, the ECtHR required the Czech government to prove that no discriminatory practice was taking place (instead of requiring the applicants to prove this). Additionally, in a more recent case in 2022, Basu v. Germany, the ECtHR imposed a duty on the German government to investigate ethnic and racial profiling once there is an arguable claim that the person has been targeted based on racial characteristics (Streicher 2022). This case is explored further below.

In short, the victims of discrimination must have a great deal of agency to litigate and probably for this reason, there are few cases of racial or ethnic discrimination (Goldston 1999). And even if they finally win the case, what do they achieve with it? Usually, the damage has already been done, the job has already gone to someone else or the victim is already sick with frustration at home. If a discrimination case is won by the victim it, at the most, leads to some individual profit, but in the majority of cases, nothing changes structurally. This means that in the aftermath of a legal victory, the meso-level of institutional discrimination, described by Phillips (2010), remains largely intact.

Alternative legal means

We will now turn to two alternative options in which the law still does play a role, but by which some of the obstacles of the individual rights strategy can be avoided, levelled down or bypassed: collective instead of individual actions such as legal mobilization and/or strategic litigation; and proactively approaching organizations and institutions by imposing equal treatment duties on them. An example of these is the Public Sector Equality Duties.

Legal mobilization

According to Böcker (2020, 30), “[t]he mobilisation of non-discrimination rights often depends on whether there are NGOs that can inform, activate and support members of protected groups”. We define legal mobilization as per Vanhala (2021): “any type of process by which individual or collective actors invoke legal norms, discourse, or symbols to influence policy, culture or behavior”. We use mobilization here to refer to a progressive form, advancing rights and combating non-discrimination (for a different conceptualization of mobilization, see Koch 2024). The advantage of collective legal mobilization is that the individuals are no longer the ones who have to find their way in combatting obstacles to access justice. Instead, an NGO or other collective actor takes this burden from them and potential fellow victims. One of the ways in which NGOs can offer such support is by strategic litigation, a form of legal mobilization. Strategic litigation refers, in short, to the use of judicial procedures to create change (political, legal, social) beyond the individual interest or individual case (Van der Pas 2021). Thus, litigation is used as a “strategy”, as opposed to other means such as lobbying or protesting. In the Netherlands, which we use here as an example due to the receptive environment for legal mobilization, strategic litigation for non-discrimination purposes can take two forms: firstly, the NGO supports an individual or a group of individuals in his/her/their claim. Secondly, the NGO makes a claim itself. The NGO claim is only admissible if it has promoting human rights/equal treatment as a statutory aim (according to art. 3:305a of the Dutch Civil Code). Examples of other such receptive environments for strategic litigation include Portugal, where litigants have the right to start an actio popularis, a procedure to protect a public interest according to Article 52 Portuguese Constitution, and India, where “public interest” litigation is a separate category of procedures whereby litigants other than victims can start litigation (Deva 2009).

The possibility of an NGO making claims itself is not common in all jurisdictions. It is a procedural avenue created by the Dutch legislator to litigate for a collective or “public” interest. Therewith, the Dutch legislator has opened up national Legal Opportunity Structures (LOS) (Hilson 2002). LOS refer to the national legal system, including access to courts and the receptivity of judges towards certain claims, and whether these encourage or discourage litigation (Andersen 2006; De Fazio 2012). With the second option mentioned above, LOS have “opened” up in the Dutch legal system, which encourages strategic litigation. Moreover, with the latter option, a certain practice as a whole can be addressed, moving the perspective of the case beyond the individual from the micro- to the meso-level. In the “regular” type of procedure, the individual remains the focus, and any change beyond the individual will need to be attained extralegally. Additionally, opening up these Legal Opportunity Structures and allowing NGOs to litigate domestically prevents arduous litigation at the international level, which is helpful for authorities wishing to address systemic issues as well.

Thus, Dutch NGOs can go to court as litigants themselves. Nevertheless, also with the first option of supporting an individual in litigation, NGOs can remove part of the problem of the individual rights strategy. The NGO has certain resources and (legal) expertise that an individual does not (Edwards, McCarthy, and Mataic 2018). In other words, the NGO can help with naming. Additionally, the NGOs can help with collecting evidence of discriminatory practice, overcoming the obstacle of blaming. Lastly, the NGO can financially and legally support the victim in initiating legal proceedings, i.e. claiming.

The example of Mr Bamenga can illustrate the importance of the support of an NGO: together with another victim of ethnic profiling and with the help of three human rights organisations (Amnesty International, the Public Interest Litigation Project and ControlAltDelete), Mr Bamenga started a procedure against the Dutch border police. The organizations were involved as litigants, just like Mr Bamenga. This litigation became a strategic procedure with numerous advantages. For example, it made clear that it was not just Mr Bamenga who was the victim of ethnic profiling. On the contrary, it was common practice. Additionally, there were many experts on non-discrimination law and general procedural law who pro bono supported his claim. Moreover, the court fees were taken care of. Lastly, the judgment could have a much wider potential reach than for the individual involved, as the scope of the case was wider as well (although this is, of course, also the case if the judgment is negative). In sum, the disadvantages of one-shotters were for a great deal taken away in this procedure. The case was dealt with by repeat players.

The case of Mr Bamenga can be contrasted with the aforementioned case of Basu v. Germany, which was on a similar topic, namely alleged ethnic profiling by a governmental body during a passport check. Mr Basu is, just like Mr Bamenga, an activist and was subjected to a passport control on the train by German authorities. Subsequently, he started proceedings in a German administrative court alleging that the passport check consisted of ethnic profiling (Washington 2022). Mr Basu is part of the organization Kampagne für Opfer rassistischer Polizeigewalt (KOP) and was supported in the legal proceedings by prof. dr. Maren Burkhardt (Barskanmaz 2022). Eventually, the case was taken up to the ECtHR level after all domestic remedies had been exhausted, which resulted in a legal victory for Mr Basu. A main difference between the two cases is that the German legal system does not allow for NGOs to initiate litigation to defend a public interest. Thus, German Legal Opportunity Structures are more closed than in the Netherlands and this discourages strategic litigation. Moreover, it makes litigating for alleged instances of discrimination more difficult, as NGOs can only partially assist individuals, but not take over fully from them. The focus of the Basu case is also more on the micro-, individual level, as opposed to the meso-, institutional level, which was the target of the case of Mr Bamenga.

There is, however, another side of the coin. Although NGOs can be regarded as repeat players, at least in terms of knowledge of non-discrimination law, strategic procedures cannot take away all the obstacles for victims of discrimination discussed before. Several other obstacles remain, such as the difficulties in relation to evidence and the complexity of the concept of ethnicity. Moreover, court fees can remain a problem if the NGO lacks financial resources. Litigation can drag on for quite some time, which makes the commitment and resources of the strategically litigating NGO important. Additionally, as stated above, the purpose of strategic litigation is to create change beyond the individual. Some NGOs might, for this reason, lose sight of the individual interest and use the individual as an instrument in legal proceedings.

Mr Bamenga and the NGOs lost their case at the District Court, which argued that black people are generally-speaking not Dutch.¹⁰ Nevertheless, Mr Bamenga and the NGOs won the battle with the Dutch border police. How come? The District Court’s decision led to much outrage from academics (Grütters and Terlouw 2021; Rodrigues 2021) and society more broadly.¹¹

Here we see the same confusion between race and nationality that Messing and Pap (2024) write about in this special issue (see also Lauwers 2024). It should be clear that nationality in the sense of citizenship does not coincide with ethnicity.

One of the criticisms on the District Court judgment came from Mr Malcolm Jallow, rapporteur of the Parliamentary Assembly of the Council of Europe. He wrote a letter to the Dutch Minister of Internal Affairs and Justice and Safety stating that the recent judgment not only shows that ethnic profiling still happens in the Netherlands, but also shows that the legal system justifies it. By doing that, a clear expression of discrimination on the basis of ethnicity is normalised.¹² This was not the only consequence of the judgment. Soon after it was passed, the Dutch Parliamentary Commission on Internal Affairs organised a round table on ethnic registration. The Dutch border police was invited to this round table. This led to the announcement by the border police that it would put an end to the practice of ethnic profiling, without, however, specifying how.

This example of success shows litigation does not necessarily have to be won for changes to occur. At times, the strategy around a loss can secure the desired outcome, for example, because it exposes the injustice that is taking place (NeJaime 2011).

Mr Bamenga and the other claimants still appealed the District Court judgment as they wanted to challenge the judgment, no matter the promises made by the border police. In appeal, they won. On 14 February 2023, the Appellate Court (Gerechtshof) of The Hague overruled the District Court decision and judged that the use of ethnicity and race by the Dutch border police to determine who would be selected for further checks when arriving in the Netherlands is discriminatory. Race may, according to the Court, only be used as a distinguishing factor if there are extremely special circumstances. The Dutch State had failed to prove that such circumstances exist. The Court called this a particular serious form of discrimination and pointed to the radiating effects of such a practice into the Dutch society as a whole. Dutch people with a skin colour other than white may feel unaccepted and feel that they are second-class citizens because of ethnic profiling.

We used the Bamenga-case as an example to illustrate some of the obstacles that individuals are confronted with when they want to start a court procedure to combat discrimination and the weaknesses of the individual rights strategy. We also used the case to show that legal mobilization/strategic litigation can be an important tool to take away some, but not all, of the disadvantages of this individual rights strategy. It is helpful in the legal sense if there is a possibility in national law for NGOs to initiate litigation as a direct litigant, as this opens LOS and shifts the perspective away from the individual. This is of course not only helpful for victims of ethnic discrimination but for all victims of discrimination and, more broadly, for all individuals who experience obstacles on their road to justice.

A proactive legal approach

Proactively approaching employers and educational institutions to encourage them to ensure a workplace or institution free from discrimination can be more effective than waiting for a conflict and expecting the individual victim to react. We consider this targeting discrimination at the institutional, meso-level. This approach is linked to what Havinga, Böcker, and Groenendijk (2000) call the general social working of equal treatment law, as opposed to the specific social working of this law in individual lawsuits. They define this general social working as the daily practice within organizations in which non-discrimination law is applicable, without the presence of a specific conflict that is presented to a court of law or other judicial institution. The law, the prohibition of discrimination, still plays a role but the effectiveness/social working of the law is determined by the question if and how the norm addressees of the law are adapting their behaviour without being forced to do so. Norm addressees are the organizations or institutions to whom the norm, the prohibition of discrimination, is addressed. They are the ones that have to live up to the norm and effectuate it in practice. The findings of Havinga, Böcker, and Groenendijk (2000) about the general social working of discrimination law were not very encouraging, but they did provide some suggestions for improvement of this general social working, such as better communication with the norm addressees and attention for the enforcement agency. It is important to note that their other suggestions still seem to have legal procedures in mind, such as investments in good legal aid, showing the importance that is attached to the continuation of the litigation avenue.

We argue here that the main mechanism to improve this general social working of equal treatment law must be found in actively approaching organizations and pointing them to their legal obligations (not to discriminate) and responsibilities, such as ensuring an environment free from discrimination. In order to do this, EU non-discrimination law could be enriched with Public Sector Equality Duties (PSED), similar to what has been enacted in the UK. In short, the PSED aims are to mainstream equality, achieve a culture of social inclusion ending marginalization and disadvantages of individuals with protected characteristics, and enhance dignity (Section 149 Equality Act 2010). The focus of the PSED is on the responsibilities of public sector organizations. In order to reach these aims, specific duties are imposed upon public sector organizations to report on the progress as they strive for equal treatment and observance of human rights.¹³ As Manfredi, Vickers, and Clayton-Hathway (2018, 7) assert: “The PSED does not dictate any particular outcome; instead it seeks to encourage workplaces and organisations to introduce processes and procedures within their own systems that will help him achieve the objectives of the Duty”.

As far as we can observe with regard to the PSED, the law plays a role in three ways: (1) it is norm setting, as it imposes the Duty; (2) policy discussions within public sector organizations take place in the shadow of this law, therefore it leads to awareness; and (3) the law serves as the sword in the background (Sigafoos 2016). The latter entails that the PSED is in principle enforceable before a court. We lack sufficient knowledge to state that the PSED genuinely contributes to equality and can serve as an alternative for the individual rights strategy and the difficulties to hold public sector organizations responsible for (institutional) discrimination. However, many reviews of the PSED of the UK have been carried out (Clayton-Hathway 2013; Independent Steering Group, Government Equalities Office 2013). Without doing justice to the extensive work done in these evaluations, some general impressions of the benefits and burdens can be given. We selected only those aspects that we considered relevant for answering the question of whether the UK PSED can form a good alternative for the individual rights strategy in the case of discrimination on the grounds of ethnicity.

There seems to be little evidence on whether the UK PSED is leading to improved outcomes. This is not so remarkable because, as already mentioned, the impact of laws is always difficult to measure and this is extra problematic here because the PSED replaced earlier equality duties for specific grounds (race, disability and gender). It is almost impossible to distinguish what the impact was of these earlier Duties and what can be ascribed to the PSED. Of course, the answer to the question of whether the PSED contributes to equality depends on what is understood by equality. Nevertheless, it is firstly important that this matter is on the table within public institutions. It may raise awareness (NatCen Social Research 2013). Important in our eyes in this regard is the following remark in the report of NatCen (2013, 36): “PSED was seen to shift the onus of responsibility away from the individuals and on to public bodies to work proactively rather than to react to challenges”. According to some of the evaluations, there is uncertainty and a lack of clarity of what is expected and the exact requirements to meet the Duty, and it is not always clear who the stakeholders are (Manfredi, Vickers, and Clayton-Hathway 2018, 9–10). This diminishes the effectiveness of the PSED.

A possible disadvantage mentioned by Manfredi, Vickers, and Clayton-Hathway (2018, 10–11) is that there might be inequalities in bargaining power between minority groups and within ethnic groups. If we concentrate on discrimination on the grounds of race/ethnicity, this leads to the following question: Did the general PSED of the UK shift attention away from the specific protected grounds that were guaranteed by the Duties, like the Duty on race? Public sector organizations with the PSED have the possibility to prioritize, provided that they can justify why they do so. Will equality on the grounds of race/ethnicity still be high on the agenda or will other grounds prove more important? Other disadvantages mentioned by Manfredi, Vickers, and Clayton-Hathway (2018) are that the standards for reporting are too low, that there are inequalities of bargaining power between disadvantaged groups and the focus can turn to the process of implementation rather than the content of the rights being implemented. Furthermore, in their view, there is a “failure to recognize deep structural inequalities and the inequality in power relations” (Manfredi, Vickers, and Clayton-Hathway 2018, 10–11).

Another result from the evaluations that should be taken into account when considering the inclusion of PSED is complaints about bureaucratic burdens for the public sector. An important challenge is apparently the collection of data. In the official review of September 2013, the Independent Steering Group reported that this led to a “tick box” approach by many organizations (Independent Steering Group, Government Equalities Office 2013). As Messing and Pap (2024) point out: there is the problem that there is no agreement on the question as to whether the collection of data about ethnicity, for example that of employees, is in accordance with the law. Finally, although there is quite some jurisprudence on what the Duty entails, enforcement appears to be difficult but the idea was “to achieve a culture of compliance rather than relying on court proceedings (…) responsive proceduralized self-regulation, in which compliance is based on developing the capacity of institutions to address inequality” (Manfredi, Vickers, and Clayton-Hathway 2018, 6). Still, according to Manfredi, Vickers, and Clayton-Hathway (2018, 28), “a realistic threat of legal enforcement is vital”.

The abovementioned evaluations of the PSED are related to the analysis by Lugon Arantes of the Due Dilligence Standard and the Prevention of Racism and Discrimination¹⁴ (Lugon Arantes 2021). This standard has a similar aim to the PSED. Arantes argues that the due diligence standard is not specifically designed to deal directly with structural discrimination. Nevertheless, it can still play an important role in dealing with this phenomenon. In order to render due diligence as effective as possible and to enhance its capacity to deal with structural racial discrimination, Lugon Arantes claims that more specificity and a better toolbox is needed. He mentions six subjects on which the obligation needs further specification:

the obligation to enact legislation to prevent acts of racial discrimination; the obligation to produce disaggregated racial and ethnic data; the obligation to monitor instances of racial discrimination; the obligation to prevent racial discrimination directly by State agents; preventive measures to protect indigenous lands; and State obligations relating to privatization in the context of racial discrimination. (Lugon Arantes 2021, 414)

With the evaluations of the PSED and the suggestions by Lugon Arantes in mind, our impression is that although the disadvantages cannot be disregarded, there are important advantages to the PSED compared to the individual rights strategy. Most important is that the PSED takes away the burden to mobilize equality law from the individuals and transfers this burden to the meso-level. The PSED in this way can also offer a way to deal with the obstacle that exists in Dutch law on the road to justice in case of institutional discrimination by governmental organizations. These organizations would be obliged to, at least, become aware of possible discriminatory structures or practices within their organization. Moreover, the PSED forces public organizations to evaluate their own functioning, which leads to awareness of the problems and of their responsibilities. Additionally, the outside world gains insight into what the organization has undertaken in order to prevent and combat discrimination. In order to avoid naming and shaming, it can be assumed that the organization will try its best to give a good impression.

Conclusion

Combatting discrimination is difficult. The law in the books is not the law in action, especially when it comes to ethnic discrimination. The concepts race/ethnicity and discrimination are complex. Additionally, there are many obstacles for victims of ethnic discrimination to complain and access justice. Not too much can be expected from the individual rights strategy (the micro-level approach), which is the starting point of non-discrimination law. We are interested in the alternative approaches discussed above: legal mobilization/strategic litigation targeting the meso-level, and a proactive approach of organizations including positive obligations with regard to equal treatment, which shifts the burden from the individual (micro-level) to the institutions (meso-level).

Both instruments offer a promising approach as they can take away part of the disadvantages of the individual rights strategy. In strategic litigation, for example, NGOs are the repeat players in legal proceedings that support the individual with resources and expertise. It is, in some jurisdictions, such as the Dutch one, even possible that NGOs initiate litigation themselves about alleged discriminatory practices without having an individual case. In the proactive approach of organizations, duties are imposed on them to combat internal discriminatory practices. When using these alternatives, the law does not even always have to be mobilized in a court procedure but serves as a simple threat, a sword in the background. The success of both approaches depends a great deal on the support and active involvement of NGOs. It is, in our view, important that governments, if they aim to combat of discrimination, realize this and invest not only in the active approach of public (and maybe also private) organizations by imposing accountability and responsibility duties on them, but also invest in NGOs supporting those who are discriminated against. Moreover, they should involve the people concerned when developing new laws and policies aimed at combatting discrimination: nothing about us without us.

Finally, in the fight against discrimination, governmental organizations should be aware not to measure all discrimination grounds and all social fields by the same yardstick. Discrimination caused by ignorance might require another approach than discrimination caused by aversion or fear. The same goes for discrimination by public institutions and by private organizations. Overt and direct and open forms of discrimination are easier to combat than hidden, indirect and institutional discrimination. Moreover, discrimination on the ground of ethnicity may require another approach than discrimination on other grounds.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Böcker’s (2020) article “Can Non-discrimination Law Change Hearts and Minds?” has served as a starting point for this article and it was further inspired by a conference on strategic litigation of the Meijers Committee (https://www.commissie-meijers.nl/) in September 2022.

2 It is, therefore, not a case study but a mere example.

3 See for example ECtHR 22 December 2009, appl. No. 27996/06 and 34836/06 (Sejdic & Finci v. Bosnia and Herzegovina).

4 European Union Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

5 See their Factsheet on racial discrimination, available at https://www.echr.coe.int/documents/d/echr/fs_racial_discrimination_eng.

6 Rb. Den Haag 22 September 2021, ECLI:NL:RBDHA:2021:10283.

7 ECtHR 16 April 2019, appl. no. 48474/14 (Lingurar v. Romania), par. 80.

8 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

9 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

10 Rb. Den Haag 22 September 2021, ECLI:NL:RBDHA:2021:10283.

11 See for example the Dutch journals Volkskrant and Trouw of 7 October 2021 referring to a (non-published) letter of Mr Momodou Malcolm Jallow, the general rapporteur for the Parliamentary Assembly of Council of Europe on combating racism and intolerance in Europe, to the Dutch Ministers of Internal Affairs and Justice and Safety about the court decision in which he expressed his concerns about the normalizing of ethnic profiling in the Netherlands. Numerous NGOs also raised their concerns.

12 Reported in several Dutch media de Volkskrant and Trouw on 7 October 2021.

13 “Public Sector Equality and Human Rights Duty”, ihrec,ie.

14 The standard of due diligence is a principle in international human rights law that requires states to act proactively and effectively to fulfil their legal obligations.