INTRODUCTION

Anti-discrimination law is oft en depicted as an important tool for implementing distributive policies in the name of social justice. In practice, however, the relationship between anti-discrimination law and the different ideals of distributive social justice is a complex one. One source of this complexity is that the traditional anti-discrimination model assumes that the alleged victim of discrimination is treated less favourably or is placed at a particular disadvantage in comparison with other persons. Protecting diversity is one of the central objectives of social policy in contemporary pluralistic societies. But the legal test for comparability seeks to determine whether two situations are relevantly similar for differential treatment to qualify as direct discrimination or relevantly different for similar treatment to qualify as indirect discrimination. This means that the comparability analysis may easily support a narrow view of what constitutes relevant subjectivity in discrimination law. The potential of antidiscrimination law and policies to contribute to the wider aims of social justice remains limited within a comparator-based approach to discrimination. One task of discrimination theory is therefore to consider what alternatives to the comparability analysis can be provided in discrimination law.

This chapter will rethink the requirement of comparability within a relational framework of egalitarian social justice. It will first explore how the idea of comparability is embedded in the case law of the Court of Justice of the EU (CJEU) and what critical responses it has fostered in anti-discrimination law scholarship (section 2). This analysis lays the foundation for the argument that the requirement of comparability oft en misinterprets the relational nature of social reality. The remaining sections of this chapter will develop a relational critique of comparability, first by suggesting that discrimination law should move from a ‘relative’ to a more ‘relational’ ideal of equality (section 3), and then by considering what implications this theoretical analysis might have for the different functions of comparability in EU anti-discrimination law (section 4). It will be concluded that placing more emphasis on the applicant's ability to relate as an equal with other members of society in deciding whether adverse treatment constitutes discrimination on one or several of the protected grounds can reshape our understanding of what constitutes relevant subjectivity under discrimination law, and thus reconcile the legal framework for combating discrimination with the wider objectives of social justice.