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Anti-discrimination legislation: findings from a parliamentary investigation and some recommendations

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Despite myriad legal provisions in place in the Netherlands to prevent discrimination, it remains a serious issue, permeating all societal sectors and informing government actions and policies, as the recent childcare allowance scandal has shown. Between 2020 and 2022, ISS Rector Ruard Ganzevoort in his capacity as a member of the Dutch Senate chaired a parliamentary committee of inquiry that examined the effectiveness of anti-discrimination legislation. In this blog article, he discusses some of the key findings of the investigation and names six factors that can be considered when seeking to ensure that existing laws effectively prevent discrimination.

Photo by Jeremy Bishop on Unsplash

Why is it that discrimination is rampant, even when strong anti-discrimination laws are in place? And not just discrimination by individuals or organizations, but also by government institutions? In the Netherlands, a country often priding itself on its strong (although at least partly imagined) history of tolerance and equality, this has come to the public attention with the childcare allowance scandal, where substantial indications of systemic or institutional discrimination in our social welfare system and our tax system surfaced.

As a member of the Dutch Senate, a position I held until last June, I chaired a parliamentary committee of inquiry on the effectiveness of anti-discrimination legislation. The question the Senate wanted to address is why our legislation seems unable to curb this widespread and systemic discrimination. The first article in the Dutch Constitution explicitly bans discrimination on any ground. We also have specific laws against discrimination on more specific grounds. We have implemented a system for complaints and local institutions to address individual cases. In short, we have extensive policies against discrimination. And yet… discrimination not only persists despite our legislation and policies but sometimes because of them. And it is highly detrimental to our citizens.

The committee looked specifically at discrimination in the domains of 1) the labour market, 2) education, 3) social security, and 4) the police — four domains with a different degree of governmental influence. In each domain, we selected specific issues in discrimination that would help us understand the dynamics so that we can improve the legislative process. In the domain of social security, we looked at two issues: first, the role of algorithms in detecting unlawful use of social support and, second, the fact that certain groups tend to avoid the social security system, even if they are entitled to receive support.

The results of the inquiry were published in June last year and can be viewed here (full report in Dutch) and here (summary in English). Below, I briefly discuss two key findings from the report: that algorithms carry a discriminatory risk, and that people do not access social security provisions available to them in part because the government seems to mistrust eligible persons.

 

Algorithms can discriminate and pose a risk

The analysis of our investigation highlighted the discriminatory risk of algorithms, especially when prejudice and bias are incorporated into the risk profiles and data sets. Moreover, even relevant and / or seemingly neutral information can contribute to the discriminatory use of profiles and data. A combination of postal codes, IP addresses, and phone numbers for example can indicate ethnicity or nationality and thereby can result in indirect discrimination.

 

Government distrust may explain failure to access social security provisions

Regarding the non-use of social security provisions, the complexity of the system and the fact that the government seems to mistrust those who need support were found to be important factors. This regards especially those with fewer social-economic resources and people with structural or temporarily impaired capabilities. Although these criteria are hard to define in law, the outcome can be seen as discriminatory.

 

Six factors to consider for more effective legislation

Analyzing cases from these four domains, the investigation yielded six crucial factors that are not only relevant for the effectiveness of legislation (although that was the focus of the analysis), but also for policies in organizations. In those cases, the word ‘government’ can be exchanged for ‘leadership’.

  1. First, trust. Does the government trust or mistrusts its citizens? The fundamental attitude should be that people by and large can be trusted and that in varying degrees they need support. If the government displays fundamental mistrust, this will likely result in discriminatory laws and policies.

 

  1. Second, attention. Does the government display continuous attention for discriminatory processes and outcomes, and does it listen specifically to what people need and experience? Lack of attention puts systems above people and easily results in discriminatory laws and policies.

 

  1. Third, norms and language. Do new laws explicitly refer to antidiscrimination principles and make them concrete? And are implicit norms inclusive enough or do they favor certain groups? Vague and implicit norms can easily result in discriminatory laws and policies.

 

  1. Fourth, simplicity. Do our laws and policies provide transparent, consistent, and integrated criteria and regulations to citizens and institutions, including educators and social services? The complexity of our laws and policies makes it difficult for citizens to claim the support they need, to execute their rights and to file complaints where needed. It also yields space for bias and prejudice and can therefore result in discriminatory laws and policies.

 

  1. Fifth, leadership and accountability. Does the government explicitly make institutions and organizations responsible to curb discrimination and to arrange accountability structures? And do our policies provide for the necessary skills and professional space to use and account for discretionary power and hardship clauses? Failure to do so, especially in situations of unclear norms or conflicting political demands, may result in discriminatory laws and policies.

 

  1. Sixth, clear and effective complaint procedures. Are the possibilities for citizens to complain about certain decisions clear, accessible, and effective? It is not enough to have procedures in place, if people cannot realistically use them. Moreover, this should not be the only safeguard because then only the well-resourced citizens are able to use them which actually increases the risk of discriminatory laws and policies.

 

Trust, attention, norms, simplicity, leadership and accountability, and clear procedures. Obviously, these principles for legislation and policies are not a foolproof remedy for discrimination. They are, however, an important instrument in addressing the systemic and institutional dimensions of discrimination. They clarify how our legislative processes and organizational policies can willingly or unwillingly result in discrimination, and they show what we can do to reduce that. In the end, of course, they turn out to be just principles for good laws and good policies for all our citizens.

Photo by Jeremy Bishop on Unsplash

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About the author:

Ruard Ganzevoort is rector at the International Institute of Social Studies in The Hague

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The university of paleness by Willem Schinkel

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In a recent attempt to address the underrepresentation of female professors in the Netherlands, the Dutch government made extra funds available to universities to appoint women. To the dismay of many people at Erasmus University, the university refused to fill over half of the available positions and sent the money back. This triggered Willem Schinkel’s personal essay in which he explains how he feels alienated from a university whose masculine dominance is closely tied to its corporate character.

 

If an alien from an exoplanet came to Erasmus University, or to any other university in the Netherlands, and if that alien considered the composition of the university in terms of gender and race, it would most likely draw one of two conclusions. One, this space has been invaded by white men. Two, the model that best describes the spread of white men through institutions of higher learning is that of some kind of plague or epidemic. Of course us earthlings would be quick to explain to our alien friend that the unequal distribution of men and women, of white people and people of color, is normal – even though it is not a normal distribution in the statistical sense! You see, we would tell this alien, the principle that governs our distribution over institutions of knowledge and power, is what we call quality. To which the alien might rightfully respond: ‘I see. And what is the principle that governs the distribution of your quality?’

At this point in time, I don’t think administrators at Erasmus University have a good answer to this question. Recently, our university refused government money for the appointment of so-called Westerdijk chairs for female professors. The dean of the Rotterdam School of Management, Steef van de Velde, made a classic patriarchal move and wasn’t shy about it: in an interview with Erasmus Magazine he said he hadn’t appointed any women because he wanted to “protect” them. After all, an appointment on a Westerdijk chair would be perceived as “stigmatising”, since people would think ‘that they needed this type of appointment because they could not get an appointment on their own merits.’ Moreover, he said, this was not at all a question of money – the RSM has plenty and doesn’t need such money to appoint women. To top it, he said there were plenty of upcoming women in tenure tracks – and why give some women some money (in Dutch, he spoke of a “sweetener”, or douceurtje) and others not?

This kind of reasoning and rhetoric is an affront on so many levels, including the level of intellectual discussion befitting a university. I have no intention to counter it with all the good reasons for the appointment of women. I don’t think it’s my place in particular to make that case, and I also think that the case has been made over and over again. We know all the arguments – that is, if we choose to pay due attention to the scientific study of “diversity” – but they run aground in the morass of the white male dean-dominated powerhouses that university faculties are in this country and elsewhere in the world. So this essay is not a case for diversity. If anything, it’s a case for a university that may be gone, and that more likely may have never existed.

The alien in my hypothetical example might assume that an invasion had occurred. And in a way, of course, the invasion has always already taken place. We are in a state of occupation. Getting serious about undoing it is what is called “decolonising the university”. Here’s another way to think about what it means that our appointments are so one-sided. If I often feel alienated from the university  it has something to do with the model of living together we embody.

The university, like any other setting, is always also one answer to the question how to live together, how to be social, how to practice sociality as being in the world together. And I guess it just keeps on being disappointing that this – the current composition of the university – is the modality of sociality that keeps on being reproduced. Ours is a conditioned stupidity. It is conditioned by an imagination limited to market-based modes of finding value in life. But being so conditioned is not a condition; it is a constraint that is enforced, but over which we might have control.

So whatever happens, let it be obvious that our “diversity”, that is, the composition of our togetherness, is a choice. And the university as it is produces what might be best called a form of paleness. By this I mean a uniformity and homogeneity, a desire for and expression of an order of looking and working alike, an order of whiteness and masculinity, in which “I don’t recognize this picture of the university” even counts as an argument. This paleness is of course a form of whiteness. But the paleness I’m alluding to is also an intellectual desolation or drabness, an achromatics of thinking. And it is a submission to neoliberal procedural routines in the ways we work, as well as a general appreciation of mediocrity sold as “excellence” – remember that, after appointing men on half the positions available, we’re tapping into the lower tiers of intellect and creativity if we continue to appoint men.

And what a bleak picture it is to see those with a ticket to inclusion! What has happened when students (they are not to blame for this!) don’t even think to criticise the curriculum set by the order of pale sameness? What has happened when technocratic markers of achievement that are “evidence based” take precedence when in fact most have no clue what a genuine spirit of inquiry would be, what intelligence might be as a mode of sociality beyond individuated IQ indicators, or how study might be a shared venture to recompose the world in ways that subvert the pale order of sameness to which we currently sacrifice ourselves, but mostly others, for the noble cause of producing “knowledge”?

If anything is clear, it’s that the university is invested in state and corporate power, including criminal fossil fuel companies, and divested in diversity. And when we keep on seeing how diversity basically functions as what Sarah Ahmed calls a “non-performative”[1] – something designed not to produce its stated goals – the only way to move forward is to step up our critical reflection on, and our subversion of, the university at large. The point is thus not to consider the university as basically fine as it is, and to just grant access to it to a greater number of people, or by people of a variety of gender and “race”. It’s not about letting others get a piece of the pie, of sharing in the otherwise unchanged corporate paleness that marks the university today. Much more fundamentally, it is a matter of living as such, of living together. After all, this is what we do on campus: during the day, ours is a specific modality of being together, a selective, tilted, and pale form of intimacy. So the question who gets to be there is pertinent, and concerns us all.

[1] See: Ahmed, S. 2012. On Being Included: Racism and Diversity in Institutional Life, Durham: Duke University Press.

An earlier and longer version of this piece was published in Erasmus Magazine: https://www.erasmusmagazine.nl/en/2018/05/19/opinion-the-university-of-paleness/?noredirect=en_US


willemschinkeloverracismecensuurenpolitiekecorrect-0-0-820-540About the author:

Willem Schinkel is Professor of Social Theory at Erasmus University Rotterdam and a member of the Young Academy of the Royal Netherlands Academy of Arts and Sciences (KNAW).

 

 

Diversity in the Dutch local elections by Kees Biekart and Antony Otieno Ong’ayo

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‘Migrant-led’ political parties are on the rise in the Netherlands—a natural reaction to extreme anti-migration populism of the past decade. Insights into the local elections held on 21 March 2018 across the country show us how the rise of parties led by migrants (so-called allochtonen) can diversify the Dutch political landscape in a positive way.

 

New political parties established by Dutch people with a migration background have been quite successful in the recent municipal council elections in The Netherlands. Especially DENK, a new party formed by people with a migration background (largely from Turkish and Moroccan descent) managed to attract unexpected levels of support. This is quite a contrast with four years ago, when the Freedom Party (PVV) of anti-Islam activist Geert Wilders secured a landslide win in two Dutch cities (The Hague and Almere).

This year, Wilders’s party decided to compete in thirty cities—the ones in which his support was largest during last year’s parliamentary elections. However, his performance was rather disappointing. Wilders and his party lost most of the seats it had acquired four years ago to local parties that the PVV had competed with. These local parties won almost a third of the municipal votes—an increase of ten per cent compared to four years ago. EU nationals and non-EU citizens who lived in the Netherlands for more than five years were also allowed to vote in the local elections. This feature of the Dutch electoral system makes the municipalities an important battleground of political participation.

‘Migrant’ parties: countering anti-migration populism

hsp logoThe boom of the new ‘migrant’ political parties—next to DENK also NIDA, the Islam Democrats, Platform Amsterdam, Ubuntu Connected Front, BIJ1 and the Party for Unity—can be understood as a natural reaction to extreme anti-migration populism of the past decade. This anti-migration sentiment has been echoed by several mainstream political parties, desperately trying to capture the Wilders constituency. That is why the Christian Democrats rallied for the reintroduction of the national anthem in primary school classes, and the liberal governing party VVD reconfirmed its support for Zwarte Piet, a popular (though racist) traditional celebration for young children which is increasingly challenged by a variety of Dutch citizens.

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Not surprisingly, the new political party DENK attracted its support especially in a dozen cities that are known for their elevated migrant (and especially Turkish and Moroccan) population such as Schiedam, Rotterdam, Amsterdam, and Utrecht. DENK launched a targeted and effective election campaign, largely focusing on young voters via social media. There are also concerns, as DENK leaders have repeatedly voiced their support to the Erdogan government, and some even labelled Turkish parliamentarians rejecting Erdogan’s policies as ‘traitors’. But that seems to be a sideline, as DENK mobilised support particularly from those migrants that feel alienated by mainstream political parties who tell them to ‘better integrate into Dutch society’.

Platform AmsterdamThese voters with a migration background feel offended not only because second or third generation migrants were actually born here, but also because they experience discrimination on the labour and the housing market (even if they feel totally ‘integrated’). DENK (as well as the other migrant-linked parties) offer those ‘new Dutch citizens’ a platform that was absent in most mainstream parties, which often moved (for electoral reasons) closer to the xenophobic and Islamophobic position of Geert Wilders.UCF logo_3

Not surprisingly, there is also tension amongst migrants competing for Dutch council seats. Sylvana Simons, originally part of DENK, left after a conflict over strategic positioning. She is from Surinamese descent, with a more diverse Amsterdam constituency, and decided to run with her own party BIJ1 (“Together”). This new party also includes anti-Zwarte Piet activists from the African and Caribbean community who are generally not very well represented at the political level. The Ubuntu Connected Forum and Platform Amsterdam with largely African and Afro-Caribbean candidates, for example, did not get any council seats in the big cities. Still, Ugbaad Killincci, a young Somali woman, who had arrived as a baby to the eastern city of Emmen, was elected after racist action against her triggered a national campaign in the Labour Party (PvDA) rallying to elect her with preferential votes.

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The political party Bij1 (‘Together’) focuses on a ‘new politics’ of economic justice and radical equality.

Pre-election debates at ISSThe ISS was also involved in this debate on migration and its links to the Dutch elections by organising a public debate in which several local council candidates with a migration background participated. Half a dozen ‘migrant candidates’ brought their transnational linkages to the ISS in order to share their views and motivations to participate in these elections. Coming from Nigeria, Burundi, Suriname, as well as Turkey, they discussed how diversity played a role in the Dutch local elections. Key themes during the debate included perspectives on immigration and integration, economy and jobs, as well as public services.

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Debate held at ISS with representatives of ‘migrant-led’ parties before the Dutch local elections on 21 March 2018.

However, identity issues such as racism, gender and discrimination also emerged as critical topics in the debate. The candidates highlighted the value of their multiple and multi-layered identities, their civic commitment, and the need to leverage these linkages for the benefit of the Netherlands and countries of origin. These multiple identities reflect a demographic shift in the Netherlands, especially the increased multicultural feature of municipalities.

 

Politically, some structural shifts are happening with the ‘migrant vote’. It is about time, many migrants argue, since the majority of the population in the three biggest cities in the Netherlands now has a migration background. Still, we see migrant interests underrepresented and migrant delegates remaining the exception: migrant parties and migrant candidates overall achieved less than 8 percent of the municipal vote.

It is yet to be seen whether the newly established migrant-linked parties will gain more electoral support in the major cities; the increased competition amongst them for the same migrant constituencies may have a divisive effect, leading actually to reducing their seats in municipalities and councils. Notwithstanding, the tendency towards more diversity in Dutch politics is in motion if we look at the Chair of the National Parliament plus the mayors of Rotterdam and Arnhem being from a Moroccan background. Even though similar positions are not yet filled by persons with a Turkish, African, Asian or Caribbean background, this seems to be only a matter of time. The successes of the new migrant-linked political parties certainly are a promising step in that direction.

Main photo: Picture from DENK’s political manifesto stating that ‘people should be able to be proud of their heritage’.

csm_166bed604f68c0443160dc5f1905fa7a-kees-biekart_6d238c8725.jpgAbout the authors:

Kees Biekart is Associate Professor in Political Sociology at the International Institute of Social Studies of Erasmus University Rotterdam.

antony.pngAntony Otieno Ong’ayo is a political scientist by training and currently a Postdoctoral Researcher at the International Institute of Social Studies of Erasmus University in The Hague. he focuses on diaspora transnational practices, civic driven change, political remittances and transformations in the countries of destination and origin