Table Of ContentExponential Inequalities
Exponential Inequalities
Equality Law in Times of Crisis
Edited by
SHREYA ATREY
AND
SANDRA FREDMAN
Great Clarendon Street, Oxford, OX2 6DP,
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Foreword
David B. Oppenheimer
When the Covid- 19 pandemic began, one frequently heard the phrase, ‘we’re all in this
together’. We weren’t. The rich got richer and the poor got poorer (and sicker). Outside
of medicine, the professional classes quickly adjusted to working from home (or a
second home in the country), remaining relatively comfortable in a suddenly very un-
safe world. But for the working class and the poor, and especially for working class and
poor women and disadvantaged minority group members, at the intersection of low
income/ wealth and disadvantaged status the pandemic was and remains brutal.
Professors Shreya Atrey and Sandra Fredman of Oxford, two of the leading theor-
ists in the field of equality law (closely associated, respectively, with intersectionality
and substantive equality), are to be commended for bringing us this diverse and
discerning collection of authors, a mix of leading scholars and new voices from six
continents. The essays in this excellent collection document how the pandemic ex-
acerbated inequality exponentially around the globe, and how those who were already
worse off to begin with sunk ever deeper into poverty and danger. For this alone the
book is worth reading. But this is only the beginning.
The authors each take up the question of how equality law addresses the inequalities
created and/ or accelerated by the pandemic. For all the differences in the substance,
procedure, remedies, and theories of equality law across six continents, the answers
merge; equality law had almost no application to the inequalities caused by the pan-
demic. It was rarely invoked. It was sometimes worse than useless, as it created the
false impression that there were legal solutions extant when there were not. For this
alone the book is worth reading. But this is still only the beginning.
The authors then ask in two dozen voices, as if a chorus, why equality law has
failed us in these crises of inequality. Their answers overlap like harmonizing chords.
Equality law looks backward, not forward. It focuses on individual harm and indi-
vidual rights limited by national borders. It privileges formal equality over substantive
equality or equity. It ignores obligations of international law. It rarely keeps up with
social change, leaving it reliant on categories that are incomplete. Thus, it generally
fails to recognize poverty or migration status or geographical isolation as protected
categories. It relies on litigation. It relies on judicial orders that are frequently disre-
garded. It relies on lawyers. It relies on bureaucrats. It relies on state funding. It re-
lies on cases instead of policy. It relies on democratic participation. It expects those
who are rendered voiceless to speak out. The standard of proof is too high. The rem-
edies available are inadequate. It generally rejects the reality of intersectionality (ex-
cept when White men complain of ‘reverse’ discrimination). For this alone the book is
worth reading. But there’s more.
vi Foreword
It is said that a crisis is a terrible thing to waste. In crises we look for new ideas, new
solutions. We test the tools designed to address the crises, and prepare to fix them if
required. We become more creative. We do our best work.
Read this book not just for the data documenting the pandemic’s inequalities,
though that would be enough. Read this book not just for the description of how
equality law has failed, though that would be enough. Read this book not just for the
critique of equality law, though that would be enough. Read it for the authors’ proposals
for reform. Read it for the compelling arguments to protect socio- economic rights,
to rethink discrimination law procedures and remedies, to recognize theories of sub-
stantive equality and equity, to apply feminist economics, to embrace intersectionality,
to take seriously policies of redistribution, to re- examine the meaning of ‘disadvan-
tage’, to explore alternatives to the litigation model of dispute resolution, to demand
oversight and accountability, to redefine proportionality, and to adopt positive duties.
And then do something.
David B. Oppenheimer
Berkeley
August 2022
Acknowledgements
The contributors of this book and our research assistants—C helsea Wallis and Mihika
Poddar— have been an excellent team to work with. It is their intellectual energy and
commitment to equality law that has sustained this project during an otherwise diffi-
cult time with the pandemic.
The research for this book has been made possible by the British Academy/
Leverhulme Small Research Grant and the Society of Legal Scholars Annual Seminar
Fund. The Department for Continuing Education at Oxford has supported this re-
search, not least by supporting the team led by Christy Callaway-G ale at the Oxford
Human Rights Hub in producing the Exponential Inequalities podcast series, which
serves as an excellent companion to this book. Our editors at the Oxford University
Press— Alex Flach and Paulina dos Santos Major—h ave provided input at crucial
junctures.
Our sincere thanks to all.
SA & SF
Oxford, June 2022
Contents
List of Contributors xi
List of Abbreviations xix
1. Introduction: Exponential Inequalities: What Can Equality Law Do? 1
Shreya Atrey and Sandra Fredman
PART I UNDERSTANDING EXPONENTIAL
INEQUALITIES
2. Protecting Workers’ Equal Rights during Crisis and
Recovery: Constitutional Approaches in 193 Countries 19
Aleta Sprague, Amy Raub, and Jody Heymann
3. Addressing Intersecting Inequalities through Alternative Economic
Strategies 43
Diane Elson and Marion Sharples
4. Social Security, Exponential Inequalities, and Covid-1 9: How Welfare
Reform in the UK Left Larger Families Exposed to the Scarring Effects of
the Pandemic 61
Aaron Reeves, Kate Andersen, Mary Reader, and Rosalie Warnock
5. The Proportionality of an Economic Crisis 79
Meghan Campbell
6. Intersecting Crises and Exponential Inequalities: The View from Hong
Kong 97
Kelley Loper
PART II ADDRESSING EXPONENTIAL INEQUALITIES
SECTION A: COMPARATIVE AND
INTERNATIONAL LAW
7. New Directions Needed: Exponential Inequalities and the Limits of
Equality Law 123
Colm O’Cinneide
8. More than an Afterthought? Equality Law in Ireland during
the Pandemic 145
Mark Bell
