Equality, Discrimination and the Law

Michael Connolly

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000453607
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In identifying a number of 'fuzzy border' cases (notably where pensionable age, pregnancy, residence, and marriage, are proxies for unlawful discrimination), Equality, Discrimination and the Law argues that the traditional notions of discrimination and victimisation are inadequate to implement equality policy and cannot represent fully the reality of discriminatory practices.

When Mr and Mrs James - each aged 61 - went swimming, Mr James was charged for entry, while Mrs James was admitted free. The reason was that the local authority offered free swimming to those of 'pensionable age' (at the time, 65 for men and 60 for women). The House of Lords found that Mr James had suffered direct sex discrimination. This majority plurality decision indicated that sometimes a given set of facts does not neatly accord to traditional definitions of discrimination. This in turn encourages the judiciary to shape the law to fit the facts, which results in an inconsistent body of law full of 'fuzzy borders'. Starting with the James case, this book investigates a number of 'fuzzy border' cases in the EU and UK based on nationality discrimination, notions of indirect discrimination, pregnancy and sex discrimination, marriage and sexual orientation discrimination, perceived discrimination, and victimisation. The argument concludes that fixed notions such as 'direct and indirect discrimination are mutually exclusive' do not stand up to scrutiny and that it must be recognised that the traditional concepts of discrimination and victimisation do not reflect the reality of practice.

This work is essential reading for students, scholars and practitioners in all EU and English-speaking jurisdictions, particularly post-graduates, Policy/Law-makers, and those on dedicated equality undergraduate courses.

1 Introduction

DOI: 10.4324/9781003187547-1

Suppose a local authority had a concern for retired persons, who as a group, live in isolation and lack physical activity. It resolved to offer free swimming to those of a pensionable age, at a time when the state pension age was 60 for women and 65 for men. When Mr and Mrs James, each aged 61, approached the turnstile, he was charged for entry, while she was admitted free. Mr James sued for direct sex discrimination. Whether the authority is liable could turn on a number of factors, including the motivation of the authority (socialisation and fitness of a particularly vulnerable group), the ‘foreground’ reason (facially neutral pension ages), or the ‘background’ reason (discriminatory pension ages). In the mix as well could be variations of the comparison. These could range from a one-to-one (a 60-year-old man compared with a 60-year-old woman), a limited group (all those aged 60–65), or men and women generally. The first two comparisons would produce an exclusive advantage/disadvantage for women and men respectively, pointing to direct discrimination. The third itself is packed with variations, ranging from those who attend the swimming pool, or in addition those who would attend but for the charge, or those in the catchment area, or men and women more generally. Any of these might demonstrate a disproportionate impact on men, and will point to indirect discrimination.

The point is, this could be direct or indirect discrimination, depending upon the doctrinal view taken. It matters, because only indirect discrimination would provide the local authority with a defence, which is likely to succeed in a case such as this. To the layperson, what matters is whether the ingredient of sex discrimination against men outweighs the benign motive of the local authority. This could play a role in any litigation as a ‘policy matter’. Beyond those concerns, one could venture quite reasonably that this was both directly and indirectly discriminatory.

A good starting place to discuss these questions is Lady Hale’s assertion that ‘Direct and indirect discrimination are mutually exclusive’.¹ Of course, any such assertion is a risky one, inviting just a single undreamt-of case to undermine it. As this book illustrates, there were already many such instances. Indeed, at about the same time Lady Hale wrote her opinion, at the European Court of Justice Advocate General Sharpston opined that ‘the distinction between direct and indirect discrimination lacks precision’.² This may not be an overly helpful observation, but the admission of uncertainty is at least faithful to the reality of the case law. Sometime earlier, again in the Court of Justice, Advocate General Jacobs advised that it was not always necessary to distinguish between direct and indirect discrimination on grounds of sex. He was alluding to the equal pay regimes, which for historic reasons, have a different evidential basis which tends to blur the boundary.³ Nonetheless, the Canadian Supreme Court took a more sweeping view and abolished the distinction altogether.⁴ It is not the purpose of this book to enter into the debate as to whether or not the distinction should be abolished.⁵ It is merely to highlight that there are many fuzzy borders in the doctrinal structure of existing discrimination law, and that strident statements such as Lady Hale’s do not always hold true.

1 R (E) v Governing Body of JFS [2010] 2 AC 728 (SC) [57] (Baroness Hale). See also: R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 (CA) [114] and [119] (Mummery LJ).

2 C-73/08 Bressol [2010] 3 CMLR 20, para AG46.

3 C-79/99 Schnorbus v Land Hessen [2000] ECR I-10997, para AG30.

4 British Columbia (Public Service Employee Relations Commission) v BCGEU (‘Meiorin’) [1999] 3 SCR 3 at paras 27–29, 50–53; extended beyond employment to all areas by British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) (‘Grismer’) [1999] 3 SCR 868, at para 19.

5 See e.g. Hugh Collins & Tarunabh Khaitan, Foundations of Indirect Discrimination Law (Oxford: Hart Publishing, 2018); Andy Yu, ‘Direct and Indirect Discrimination, a Distinction with a Difference’ (2019) 9(2) Western Journal of Legal Studieshttps://ojs.lib.uwo.ca/index.php/uwojls/article/view/8072 accessed 30 December 2020.

The first two chapters examine the case law in the context of Lady Hale’s assertion. The book then examines a number of areas of discrimination law, where again hard and fast borders cannot be guaranteed, returning occasionally to Lady Hale’s theme.

Chapter 2 examines the difficulties of ‘incorporated’ and ‘cumulative’ cases. The first is where a facially neutral policy incorporates a facially discriminatory factor, such as the swimming pool example above, played out in James v Eastleigh BC,⁶ which, as if to emphasise the confusion, produced a plurality majority decision reversing all below. ‘Cumulative’ cases involve multiple and alternative factors for qualification, where just one is discriminatory. Here, the ECJ has analysed the factors as a single bundle, a suspiciously general approach, suggesting a policy-led agenda and seemingly at odds with the decision in James.

The doctrinal origins of that debate lay in the attempts to reconcile pregnancy discrimination as sex discrimination. This reasoning is examined in Chapter 3, which highlights a long-standing difference of thinking, this time, between the common and civil law jurisdictions. Common law thinking, deferential to literary interpretation, centres on the reality that as not all women are or become pregnant, any discrimination could only be indirect, opening the anti-policy possibility of employers justifying pregnancy discrimination for cold-eyed but legitimate business reasons. This necessitated dedicated legislation for pregnancy discrimination, which does not resemble discrimination law in any doctrinal sense. By contrast, the Court of Justice asserted baldly that as only women become pregnant, pregnancy discrimination amounts the direct sex discrimination. Subsequent attempts to rationalise this have explained that pregnancy is ‘necessarily linked’ to gender, or ‘indissociable’ from it (AG Jacobs),⁷ or that there was an ‘exact coincidence’ between the challenged practice and its impact on men and women (AG Sharpston).⁸ The matter became even more fuzzy when, after the ECJ ignored these rationalisations, the UK Supreme Court took them up as explanations for James as well as their own cumulative cases. Within this, there was disagreement as to their meaning, and an apparent unfamiliarity with AG Jacobs’ qualification that legal links were excluded from his indissociable rubric (something discredited in turn as the ECJ linked sex discrimination with maternity leave). A fairly obvious problem here is a willingness of lawyers all too quickly to create rubrics of general principle that do not stand up and certainly do not survive migration to other legal species.

6 [1990] 2 AC 751 (HL).

7 C-79/99 Schnorbus v Land Hessen [2000] ECR I-10997Schnorbus v Land Hessen, para AG56.

8 C-73/08 Bressol v Gouvernement De La Communauté Française [2010] 3 CMLR 20, paras AG33 and AG36-AG41.

Chapter 4 moves away from the direct/indirect debate, with a focus on the fuzzy borders around the notion of indirect discrimination. Rather than a focus on the border between direct and indirect discrimination, this chapter looks at scenarios where there is either indirect discrimination or no discrimination. The problem is highlighted in cases that policy suggests should be held to be discriminatory. These are the mistreatment of vulnerable migrant workers. Again, we see there is no clear border here.

Chapter 5 continues with an examination of the objective justification defence deployed for indirect discrimination. There is a concealed difference of opinion again between civil law and common law jurisdictions of the EU and the UK, with the EU imposing its strict proportionality formula and the UK covertly drifting towards the notion of reasonableness, invoking notions of Wednesbury.⁹ The UK approach is mired in rather duplicitous language, creating another fuzzy border.

Chapter 6 explores the notion of ‘perceived discrimination’, whereby a person treats unfavourably another because of a mistaken belief that the other possesses a protected characteristic. The archetypal example is a shopkeeper refusing to serve a turbaned Sikh man misperceiving him as a Muslim (and in the wake of the 9/11 attacks on New York, associating him with the Islamic terrorist Osama bin Laden). Policy expressly dictates there should be liability for perceived discrimination, yet the statutory formula presented to the judiciary does not lend itself to this. This is either because of the absence of a comparator with a different protected characteristic (the claimant in the example is not a Muslim) or, for disability, because it is unlikely the defendant would assume somebody has all the technical characteristics required to satisfy the legal definition of disability. There is a tendency here to disregard the comparison where the reason for the treatment is obvious. The problem with this is that it places an undue focus on the reason for the treatment, and brings the law back to a problem highlighted in James, that is whether the meaning of direct discrimination should turn on the motive of the defendant.

9 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA) provided the common law standard for judicial review, before its shift towards proportionality.

Chapter 7 picks up on the theme of comparisons, this time in the context of a requirement to be married as a proxy for sexual orientation discrimination. England’s senior courts cannot agree on whether such a proxy was directly or indirectly discriminatory. In two cases, one decided in the Court of Appeal, and the other running to the Supreme Court, the judges were divided six-five in holding that hoteliers barring unmarried couples amounted to direct sexual orientation discrimination. Unlike James, the focus in these cases was on the comparison rather than the reason for the treatment. At the time before same-sex marriage, the technical difficulty stemmed from the statutory requirement that marriage (uniquely opposite-sex) and civil partnerships (uniquely same-sex) were to be treated as the same thing. Among other things, this caused problems for same-sex couples not in a civil partnership but suffering the same treatment. Otherwise, the matter has largely been ameliorated by the introduction of same-sex marriage and opposite-sex civil partnerships, thus removing the major anomalies. But the problem remains, notably, for those facing a requirement to be ‘married according to the Holy Bible’, another facially neutral requirement incorporating a facially discriminatory factor.

Chapter 8 addresses not so much a fuzzy border, but a gulf, between expressed state policy and judicial practice regarding compulsory retirement and age discrimination. Unusually, direct age discrimination is provided with an objective justification defence, albeit defined in stricter terms than that for indirect discrimination. The arrival of the Coalition Government in 2010 produced a U-turn in government policy towards this issue. State policy from then on expressed the wish that older workers continue to work past any notional retirement age and that stereotypes regarding fitness and performance should be disregarded, as they would be for any other protected characteristics. In the meantime, the ECJ directed that the justification defence should turn on each state’s social policy. However, the UK courts have entirely ignored this and followed ECJ decisions based on other state social policies, which, unlike the UK’s, have been extremely generous towards employers.

Finally, Chapter 9 examines the problem of victimisation provisions containing no defence. The provisions are included in the principal antidiscrimination legislation in the United States, EU, as well as the United Kingdom. These are to protect those who complain about discrimination, or bring proceedings, or merely give evidence in such proceedings. The difficulty arises when a defendant defends a case with the normal vigour associated with litigation. Any such move is likely to be unfavourable to the claimant and as such results in victimisation. This chapter examines the courts’ attempts to provide a ‘reasonable’ defence when none exists in the statutory provisions. These attempts are somewhat clumsy and have created yet another fuzzy border: the basis of any defence is not at all clear. This chapter argues that there is no easy solution for statutory interpretation, and suggests legislative amendments to resolve the problem.

Within all the various doctrines and approaches documented here and throughout the book, there are more subdivisions and subtleties. For example, for direct discrimination, a form-based requirement for facially discriminatory conduct would exclude incorporated and cumulative cases, while a requirement for discriminatory intent would include the cumulative cases, but not an incorporated one such as James (because of the benign motive). In the meantime, such cases could turn instead on the comparison taken. This is especially so in the case of James, but extends to pregnancy, sexual orientation, and perceived discrimination. And while pregnancy discrimination can amount to sex discrimination under the indissociable rubric, it can only do so under the exact coincidence rubric if one assumes that only women can become pregnant, rather than acknowledging that not all women actually become pregnant and are not pregnant all of the time. A similar factual analysis is required for cumulative cases to amount to direct discrimination. The requirement here is to isolate the challenged factor, rather than rolling up into a single bundle with all the compensatory non-discriminatory factors, a suspiciously general analysis suggesting a policy-led agenda.

The UK courts are also capable of driving the ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Table of Cases
• Table of Legislation
• About the author
• 1. Introduction
• 2. Incorporated and cumulative cases: Direct or indirect?
• 3. Discrimination and pregnancy
• 4. The outer margins of indirect discrimination
• 5. Objective justification
• 6. Problems with perceived discrimination
• 7. Sexual orientation, marriage, and discrimination
• 8. Age discrimination and retirement
• 9. Victimisation and the unofficial defences
• Index