Conceptual Apparatus of Discrimination and Equal Treatment
1. The Concept of Equality: Theories and Controversies
NB DD=Direct Discrimination
ID=Indirect Discrimination
See Notes from Labour Lecture 3- Anne Davies
Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 MLR 16:
● What is aim of anti-discrimination laws?
o Traditionally people cited ‘equality/equal treatment’ as the rationale for
anti-discrimination laws, saying that they focus on disadvantaged groups
so as to ensure impartiality concerning features like race or sex.
o Collins says that being treated the same does not explain the legislation
fully: Firstly in some cases the subjects of the legislation are explicitly to
be treated differently e.g. women getting maternity leave/access to work
for the disabled. Secondly equal treatment is sometimes prohibited where
it would lead to indirect discrimination i.e. formal equal treatment
becomes unlawful where a rule or practice disproportionately operates to
the disadvantage of one of the protected groups, and the rule or practice
cannot be objectively justified. Thirdly positive discrimination permits
different treatment to rectify a historical disadvantage.
● How can anti-discrimination laws be explained, given that a straightforward use of
‘equality’ doesn’t work?
o Conventional account is a conception of equality based on a
substantive/distributive goal i.e. tries to achieve equality of
results/opportunity/resources, rather than just equal treatment. Hence
positive discrimination might be seen to achieve equal opportunity in long
run because of traditional barriers to employment.
o The problem this conception causes is the tension between equal treatment
and equal outcomes. Insistence that candidates only be hired on the basis
of merit might prevent the realisation of equal distribution of jobs between
men and women. In Europe proportionality is used to test derogations
from the equal treatment principle, while US uses a similar ‘strict scrutiny’
test. While this balances the two it doesn’t really resolve the conflict or
answer which of the two we need to use as the basis for discrimination
law.
o One strategy to resolving this concept is to adopt a v limited definition of
equality (like equal opportunity) so that it rarely clashes with equal
treatment (BUT in practice equal treatment doesn’t lead to equal
opportunity). Another is to give equal treatment priority absolutely in
some areas (like job interviews), but to abandon it in others (like outreach
programmes), BUT hard to say why the lines are drawn where they are,
and in practice the law applies the equal treatment principle across the
board. Abandon equal treatment and instead use something like ‘equal
, respect’ (BUT this cant be done given that law enshrines equal treatment
principle). Final strategy is to interpret legislation as targeting distributive
goals and just using equal treatment as a goal to get there (BUT doesn’t
explain the tension AND ignores the prominence that the law gives equal
treatment).
● We can see from the above that ‘equality’ is an inadequate principle on which to
conceptualise the law. Green suggests ‘social inclusion’ as a possible answer.
o Discrimination tends to ‘exclude’ groups from society e.g. by preventing
them from getting work or somehow prevented from enjoying the benefits
associated with citizenship some other way. The aim of social inclusion is
not about promoting a substantive form of equality, but about securing a
minimum level of welfare for every citizen, rather than seeking a broader
redistribution of welfare. Also social inclusion is not about equal
opportunities, because it doesn’t want to leave the most vulnerable to
decide for themselves whether to take up the offer of greater welfare- it
targets outcomes.
o Social inclusion sees itself as connected with social cohesions: Those who
are economically excluded tend to become disengaged in other ways too
e.g. politically. This explains paternalistic strand to non-discrimination law
in UK, which uses a mix of carrots and stick to get people back to work
rather than simply giving them the opportunity.
o Social inclusion is a political response to phenomenon of young
people/other groups whose material needs are met by the state but never
engage in civil institutions: Voting, marrying, working, forming families
etc. Social inclusion policies were formed to address growing
disengagement in increasingly wealthy societies.
o Social inclusion can be used precisely, unlike equality, which tells us
nothing about the types of groups we need to protect (could be those with
genetic endowments, social categories, legal descriptions etc) and leads to
disputes about the scope of discrimination law. Social inclusion just asks
whether the group is one that in practice has been disproportionately
socially excluded compared to the population as a whole. Under this
criterion, for instance, single parents become a group to be protected,
because the lack of affordable and adequate child-care arrangements tends
to exclude them from material and non-material benefits. Equality might
purport to justify protecting a particular group, such as old people, but has
no reason not to also protect people outside that group. Social inclusion
does.
● Does Social exclusion explain anti-discrimination laws?
o Why do discrimination laws place so much emphasis on employment,
when modern employers are unlikely to discriminate given that it is
inefficient (as irrationally depriving them of groups of labour) (Really? It
seems rational to not employ women for fear of maternity costs, or fear of
lawsuits). The reason so much discrimination law addresses employment
is because of how crucial we deem it to be as a civil institution- it has a
, massive psychological effect. The best defence against social exclusion is
having a job.
o The requirements of positive action contradict the idea of equality (since
people are not being treated in the same way), but is compatible with
social exclusion. Some evidence of positive duties emerging in UK law is
discernible, e.g. certain duties on public sector employers to improve
equality.
o To truly enshrine social inclusion in discrimination law, it should merely
be necessary to prove membership of one of the socially excluded groups,
without the need to show comparative disadvantage to other groups.
o Also the justification defence should be altered, so that it would apply to
both direct and indirect discrimination and should be used whenever the
discriminatory policy is calculated to tackle social exclusion.
o “It is certainly compatible with the aim of social inclusion to argue that
equal treatment should apply as the normal rule. Social exclusion is often
the result of unequal treatment.”
● Conclusion : “as well as upholding the ideal of respect for the dignity of individuals
or equal worth, the legislation also must be understood as pursuing a distributive aim
in order to account for deviations from the equal treatment principle. I have argued,
though certainly not conclusively, that this distributive aim or criterion of fairness
may be discovered in the aim of social inclusion. Although the current law does not
fit precisely with the principles suggested by the aim of social inclusion, the match is
closer than might be initially supposed, and in several respects the aim of social
inclusion explains features of the law that seem hard to account for by reference to
other possible distributive aims such as equality of opportunity.”
● an appreciation of the aim of social inclusion may provide an insight into the reasons
why we may have reservations about some aspects of the current law. E.g. in James v
Eastleigh BC, where P was not from a socially excluded group.
2. The Meaning of Discrimination
(a)Direct Discrimination
Equality Bill
Clause 4: The protected characteristics are age, disability, gender reassignment, marriage
and civil partnership, pregnancy and maturity, race, religion or belief, sex, sexual
orientation
Clause 13: (1) A person (A) discriminates against another (B) if, because of a protected
characteristic, A treats B less favourably than A treats or would treat others.
(2) If the protected characteristic is age, A does not discriminate against B if A can
show A’s treatment of B to be a proportionate means of achieving a legitimate
aim.
, (3) If the protected characteristic is disability, A does not discriminate against B
only because—
(a) A treats a third person who has a disability in a way which is permitted
by or under this Act,
(b) B does not have the disability, and
(c) does not treat B in that way.
(4) If the protected characteristic is marriage and civil partnership, this section
applies to a contravention of Part 5 (work) only if the treatment is because B is
married or a civil partner.
(5) If the protected characteristic is race, less favourable treatment includes
segregating B from others.
(6) If the protected characteristic is religion or belief, it does not matter whether
the religion or belief is also A’s.
(7) If the protected characteristic is sex—
(a) less favourable treatment of a woman includes less favourable treatment of her
because she is breast-feeding (DOESN’T APPLY TO WORK);
(b) in a case where B is a man, no account is to be taken of special treatment
afforded to a woman in connection with pregnancy or childbirth.
Sexual Discrimination Act 1975:
s.1(1)(a): a person discriminates against a woman if—
(a) on the ground of her sex he treats her less favourably than he treats or would treat a
man
s.2: (1) Section 1 is to be read as applying equally to the treatment of men, and for that
purpose shall have effect with such modifications as are requisite.
(2) In the application of subsection (1) no account shall be taken of special treatment
afforded to women in connection with pregnancy or childbirth.
s.2A: Also applies the direct discrimination rule to people intending to undergo gender
reassignment. This is the case where a person misses work due to appointments relating
to the reassignment and is treated more severely than if he/she had simply missed work
due to general sickness or injury.
s.3(1)(a): a person discriminates against a person (“A”) who is married or a civil partner
(a) on the ground of being married or a civil partner, he treats A less favourably than he
treats or would treat a person who does not fulfil the condition.
Race Relations Act 1976:
1. The Concept of Equality: Theories and Controversies
NB DD=Direct Discrimination
ID=Indirect Discrimination
See Notes from Labour Lecture 3- Anne Davies
Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 MLR 16:
● What is aim of anti-discrimination laws?
o Traditionally people cited ‘equality/equal treatment’ as the rationale for
anti-discrimination laws, saying that they focus on disadvantaged groups
so as to ensure impartiality concerning features like race or sex.
o Collins says that being treated the same does not explain the legislation
fully: Firstly in some cases the subjects of the legislation are explicitly to
be treated differently e.g. women getting maternity leave/access to work
for the disabled. Secondly equal treatment is sometimes prohibited where
it would lead to indirect discrimination i.e. formal equal treatment
becomes unlawful where a rule or practice disproportionately operates to
the disadvantage of one of the protected groups, and the rule or practice
cannot be objectively justified. Thirdly positive discrimination permits
different treatment to rectify a historical disadvantage.
● How can anti-discrimination laws be explained, given that a straightforward use of
‘equality’ doesn’t work?
o Conventional account is a conception of equality based on a
substantive/distributive goal i.e. tries to achieve equality of
results/opportunity/resources, rather than just equal treatment. Hence
positive discrimination might be seen to achieve equal opportunity in long
run because of traditional barriers to employment.
o The problem this conception causes is the tension between equal treatment
and equal outcomes. Insistence that candidates only be hired on the basis
of merit might prevent the realisation of equal distribution of jobs between
men and women. In Europe proportionality is used to test derogations
from the equal treatment principle, while US uses a similar ‘strict scrutiny’
test. While this balances the two it doesn’t really resolve the conflict or
answer which of the two we need to use as the basis for discrimination
law.
o One strategy to resolving this concept is to adopt a v limited definition of
equality (like equal opportunity) so that it rarely clashes with equal
treatment (BUT in practice equal treatment doesn’t lead to equal
opportunity). Another is to give equal treatment priority absolutely in
some areas (like job interviews), but to abandon it in others (like outreach
programmes), BUT hard to say why the lines are drawn where they are,
and in practice the law applies the equal treatment principle across the
board. Abandon equal treatment and instead use something like ‘equal
, respect’ (BUT this cant be done given that law enshrines equal treatment
principle). Final strategy is to interpret legislation as targeting distributive
goals and just using equal treatment as a goal to get there (BUT doesn’t
explain the tension AND ignores the prominence that the law gives equal
treatment).
● We can see from the above that ‘equality’ is an inadequate principle on which to
conceptualise the law. Green suggests ‘social inclusion’ as a possible answer.
o Discrimination tends to ‘exclude’ groups from society e.g. by preventing
them from getting work or somehow prevented from enjoying the benefits
associated with citizenship some other way. The aim of social inclusion is
not about promoting a substantive form of equality, but about securing a
minimum level of welfare for every citizen, rather than seeking a broader
redistribution of welfare. Also social inclusion is not about equal
opportunities, because it doesn’t want to leave the most vulnerable to
decide for themselves whether to take up the offer of greater welfare- it
targets outcomes.
o Social inclusion sees itself as connected with social cohesions: Those who
are economically excluded tend to become disengaged in other ways too
e.g. politically. This explains paternalistic strand to non-discrimination law
in UK, which uses a mix of carrots and stick to get people back to work
rather than simply giving them the opportunity.
o Social inclusion is a political response to phenomenon of young
people/other groups whose material needs are met by the state but never
engage in civil institutions: Voting, marrying, working, forming families
etc. Social inclusion policies were formed to address growing
disengagement in increasingly wealthy societies.
o Social inclusion can be used precisely, unlike equality, which tells us
nothing about the types of groups we need to protect (could be those with
genetic endowments, social categories, legal descriptions etc) and leads to
disputes about the scope of discrimination law. Social inclusion just asks
whether the group is one that in practice has been disproportionately
socially excluded compared to the population as a whole. Under this
criterion, for instance, single parents become a group to be protected,
because the lack of affordable and adequate child-care arrangements tends
to exclude them from material and non-material benefits. Equality might
purport to justify protecting a particular group, such as old people, but has
no reason not to also protect people outside that group. Social inclusion
does.
● Does Social exclusion explain anti-discrimination laws?
o Why do discrimination laws place so much emphasis on employment,
when modern employers are unlikely to discriminate given that it is
inefficient (as irrationally depriving them of groups of labour) (Really? It
seems rational to not employ women for fear of maternity costs, or fear of
lawsuits). The reason so much discrimination law addresses employment
is because of how crucial we deem it to be as a civil institution- it has a
, massive psychological effect. The best defence against social exclusion is
having a job.
o The requirements of positive action contradict the idea of equality (since
people are not being treated in the same way), but is compatible with
social exclusion. Some evidence of positive duties emerging in UK law is
discernible, e.g. certain duties on public sector employers to improve
equality.
o To truly enshrine social inclusion in discrimination law, it should merely
be necessary to prove membership of one of the socially excluded groups,
without the need to show comparative disadvantage to other groups.
o Also the justification defence should be altered, so that it would apply to
both direct and indirect discrimination and should be used whenever the
discriminatory policy is calculated to tackle social exclusion.
o “It is certainly compatible with the aim of social inclusion to argue that
equal treatment should apply as the normal rule. Social exclusion is often
the result of unequal treatment.”
● Conclusion : “as well as upholding the ideal of respect for the dignity of individuals
or equal worth, the legislation also must be understood as pursuing a distributive aim
in order to account for deviations from the equal treatment principle. I have argued,
though certainly not conclusively, that this distributive aim or criterion of fairness
may be discovered in the aim of social inclusion. Although the current law does not
fit precisely with the principles suggested by the aim of social inclusion, the match is
closer than might be initially supposed, and in several respects the aim of social
inclusion explains features of the law that seem hard to account for by reference to
other possible distributive aims such as equality of opportunity.”
● an appreciation of the aim of social inclusion may provide an insight into the reasons
why we may have reservations about some aspects of the current law. E.g. in James v
Eastleigh BC, where P was not from a socially excluded group.
2. The Meaning of Discrimination
(a)Direct Discrimination
Equality Bill
Clause 4: The protected characteristics are age, disability, gender reassignment, marriage
and civil partnership, pregnancy and maturity, race, religion or belief, sex, sexual
orientation
Clause 13: (1) A person (A) discriminates against another (B) if, because of a protected
characteristic, A treats B less favourably than A treats or would treat others.
(2) If the protected characteristic is age, A does not discriminate against B if A can
show A’s treatment of B to be a proportionate means of achieving a legitimate
aim.
, (3) If the protected characteristic is disability, A does not discriminate against B
only because—
(a) A treats a third person who has a disability in a way which is permitted
by or under this Act,
(b) B does not have the disability, and
(c) does not treat B in that way.
(4) If the protected characteristic is marriage and civil partnership, this section
applies to a contravention of Part 5 (work) only if the treatment is because B is
married or a civil partner.
(5) If the protected characteristic is race, less favourable treatment includes
segregating B from others.
(6) If the protected characteristic is religion or belief, it does not matter whether
the religion or belief is also A’s.
(7) If the protected characteristic is sex—
(a) less favourable treatment of a woman includes less favourable treatment of her
because she is breast-feeding (DOESN’T APPLY TO WORK);
(b) in a case where B is a man, no account is to be taken of special treatment
afforded to a woman in connection with pregnancy or childbirth.
Sexual Discrimination Act 1975:
s.1(1)(a): a person discriminates against a woman if—
(a) on the ground of her sex he treats her less favourably than he treats or would treat a
man
s.2: (1) Section 1 is to be read as applying equally to the treatment of men, and for that
purpose shall have effect with such modifications as are requisite.
(2) In the application of subsection (1) no account shall be taken of special treatment
afforded to women in connection with pregnancy or childbirth.
s.2A: Also applies the direct discrimination rule to people intending to undergo gender
reassignment. This is the case where a person misses work due to appointments relating
to the reassignment and is treated more severely than if he/she had simply missed work
due to general sickness or injury.
s.3(1)(a): a person discriminates against a person (“A”) who is married or a civil partner
(a) on the ground of being married or a civil partner, he treats A less favourably than he
treats or would treat a person who does not fulfil the condition.
Race Relations Act 1976:
