Comparison in Intersectional Discrimination

This article considers the use of the comparator tests for claims based on more than ground of discrimination. The article raises the concern that there is a principal problem with choosing the correct comparator group. In multi-ground discrimination cases, choosing strict separate comparator groups for each ground may not capture the interplay between different grounds of discrimination such as gender and race. Using a single dominant comparator group for all grounds of discrimination also discredits the complexity of intersectionality. The article suggests the contextual comparison approach used by the South African Constitutional Court. It suggests that for multi-ground discrimination cases, all relevant permutations of comparators to the case should be analyzed. All relevant comparators should then be examined contextually to characterize for any unfair impact or group disadvantage.