Indirect Discrimination

State of Denial

Equality, Autonomy and Indirect Discrimination

Oran Doyle 

Introduction

Constitutions, treaties and conventions tend to commit to equality using formulae such as

“equal protection of the laws” or “equality before the law”. In contrast, statutory texts tend not to commit to a variant of “equality” but rather to variants of “non-discrimination”. To complicate matters, some constitutions follow up their commitment to equality with a commitment to non-discrimination; some statutes that prohibit discrimination style themselves as equality legislation. Even those constitutions that contain no commitment to non-discrimination tend to accrue equality doctrine that fixes on discrimination as the paradigmatic infringement of equality. Common discussion of these issues moves seamlessly from equality to non-discrimination and back again, for the common – if unfocused – perception is that the various formulations of equality and non-discrimination are all related.

A focusing of that common perception suggests that the formulations are related in the sense that they are taken to be different understandings of what equality is and what equality requires.

Within the concept of discrimination itself, a distinction is generally drawn between direct discrimination and indirect discrimination. Direct discrimination is treated, as the qualifier suggests, as the paradigmatic form of discrimination: where a measure on its face distinguishes between class A and class B, it represents direct discrimination on the grounds of the AB difference. Indirect discrimination is a measure that does not on its face distinguish between class A and class B but which, for some related reason, is nevertheless troubling.

1 In functional terms, the concept of indirect discrimination allows us to treat a discrimination on a non-proscribed ground as a discrimination on a proscribed ground. This broadens significantly the reach of non-discrimination law.

There are two main models of indirect discrimination, one focusing on motive, the other on effect: discriminatory purpose and disparate impact. Under the discriminatory purpose model, a facially neutral measure is deemed to be indirect discrimination if it was adopted with a discriminatory purpose, eg an intention to discriminate against B.

2 Under the disparate impact model, a facially neutral measure is deemed to be indirect discrimination if it impacts more harshly on one group than on another; eg it is more difficult for class B to comply with the measure than it is for class A. The disparate impact model of indirect discrimination is the focus of this paper.

3

 Lecturer in Law, Trinity College, Dublin. I am grateful to Tom McMorrow for research assistance.

1 The precise reason why such a measure is troubling is the crux of this paper and must therefore be left vague at this stage. Suffice to say that the reason is “related” in the sense of being based on some understanding of equality or non-discrimination.

2 See Feeney v Personnel Administrator of Massachusetts 445 US 901 (1980).

3 Henceforth, when I refer to “indirect discrimination” I refer to the disparate impact model, unless the context requires otherwise.

Draft – not for citation 1

Indirect discrimination is generally viewed as being subordinate to direct discrimination, both conceptually and politically. The conceptual subordination is apparent from the nomenclature. The political subordination is apparent from the many legislative provisions that make it easier for indirect discrimination to be justified (and thus upheld) than it is for direct discrimination to be so justified (and thus upheld). This paper questions whether that conceptual and political subordination is warranted.

I propose to answer this question by examining a liberal defence of non-discrimination law.

Professor John Gardner has presented an account of anti-discrimination law that he believes to be broadly justificatory, in effect if not intent, on the basis of liberal principles. His account views indirect discrimination as a secondary instance of the core concept of direct discrimination. I focus on this account on the basis that it is both intellectually credible and politically mainstream.

4 My contention is that the liberal account does not explain the subordination of indirect discrimination and, on closer examination, may not even explain its supposedly paradigm case of direct discrimination. I then sketch the outlines of an alternative equality conception that demonstrates the sort of social practices that should concern us but that are not significant for the direct discrimination paradigm. In this way, current anti-discrimination law can be characterised as contributing to a state of denial. In order to understand the liberal defence, it is first necessary to explore the variants of indirect discrimination.

Variants of indirect discrimination

Irish statutory law

Section 3(1)(c) of the Equal Status Act 2000 effectively defined indirect discrimination in the following way:

(i) a person is in a category of persons who share a common characteristic by reason of which discrimination may, by virtue of paragraph (a), occur in respect of those persons,

(ii) the person is obliged by the provider of a service … to comply with a condition

(whether in the nature of a requirement, practice or otherwise) but is unable to do so,

(iii) substantially more people outside the category than within it are able to comply with the condition, and

(iv) the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case.

There were thus four elements of indirect discrimination. First, the claimant had to be in a category of persons distinguished by one of the nine proscribed grounds of discrimination.

5

Secondly, the claimant had to be unable to comply with a condition, requirement or practice required by the service-provider. Thirdly, substantially more people outside the distinguished category than within it had to be able to comply with the condition. Fourthly and finally, the obligation to comply with the condition could not be justified as “reasonable in all the

4 Whereas Gardner focuses on UK statutory non-discrimination law, my range of sources is more eclectic. For my purpose is not to assess whether a particular legal regime is justified, but rather to elucidate a better account of the related concepts of equality, direct discrimination and indirect discrimination.

5 In Irish statutory law, the presumptively proscribed grounds of discrimination are the following: race or ethnic origin, gender, marital status, family status, sexual orientation, disability, religion, age and membership of the Travelling community.


circumstances of the case”. Indirect discrimination occurred where each of these requirements was met.

The Employment Equality Act 1998 took a slightly different approach, defining indirect discrimination differently in relation to the gender ground from how it was defined in relation to the other proscribed grounds of discrimination.

6 Both definitions took the same approach of focusing on provisions, practices or requirements that a substantially smaller proportion of the employees from a category identified by a proscribed ground could comply with than could those from outside that category. However, the definitions differed in relation to the standard of justification required for such a provision to pass muster. The standard of discrimination for grounds other than gender was the same as under the Equal

Status Act 2000 (reasonable in all the circumstances of the case), but the standard for the gender ground was justifiability by reference to “objective factors unrelated to the claimant’s sex”. This higher level of justification for the gender ground in the context of employment was required by European Community law.

The Equality Act 2004 amended both the Employment Equality Act 1998 and the Equal

Status Act 2000 to provide a unitary definition of indirect discrimination across all grounds and covering both employment and the provision of services.

7 There are two aspects to this definition: the level of disparate impact required and the justificatory test. We shall take section 3, Equal Status Acts as a representative definition of indirect discrimination. It provides that indirect discrimination occurs where: an apparently neutral provision puts a person referred to in any paragraph of section

3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

This definition of indirect discrimination, which follows that used in the Race Directive but is applicable to more grounds and contexts of discrimination, 8 has been broadly welcomed for a number of reasons. First, a unitary concept of indirect discrimination across proscribed contexts and grounds of discrimination will go some way to reducing the complexity of this area of law. Secondly, the justificatory test for all proscribed contexts and grounds of discrimination has been levelled up to that previously applicable only to the gender ground in the context of employment. This makes indirect discrimination harder to justify. Thirdly, the change from “substantially more” to “particular disadvantage” is generally taken to obviate the need for statistical proof; this should in turn make it easier to demonstrate that there has been prima facie indirect discrimination.

In this regard, the first question is whether the new definition of indirect discrimination remains a disparate impact model. For whereas the old tests required a comparison of two groups (the test being whether substantially more members of one group could comply with

6 For the gender ground, see section 22; for other grounds see section 31.

7 Section 13 amends section 22 of the Employment Equality Act; section 20 amends section 31 of the

Employment Equality Act; section 48 amends section 3 of the Equal Status Act.

8 Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.


the measure than could members of the other group), this new test appears to compare an individual with a group. Let us call the person “Sarah” and the group “B”. Now it must surely be the case that Sarah differs from the members of B on a proscribed ground. This becomes clear if we consider the following counter example. Let us imagine that Sarah is of below average intelligence and that B consists of all other human beings (on average having fractionally above average intelligence, by definition). An intelligence requirement would put

Sarah at a particular disadvantage in comparison to the members of B. However, we surely would not say that Sarah was indirectly discriminated against by such an intelligence requirement, in a way that requires justification under the second head of the indirect discrimination definition. It just seems wrong to treat, for this reason, an intelligence test as constituting prima facie proscribed indirect discrimination. In short Sarah must differ from the members of B on a proscribed ground.

We can, however, go further. Sarah’s disadvantage must surely relate in some way to the proscribed ground. Consider the following counter-example. Let us assume that women and men are of equal intelligence but again imagine that Sarah is of below average intelligence. In this case, however, B consists of all men. Once again, an intelligence requirement puts Sarah at a particular disadvantage in comparison to the members of B. But again, it just seems wrong to include such an intelligence requirement within the concept of presumptively proscribed indirect discrimination. In order for the particular disadvantage that Sarah suffers to count as indirect discrimination, I suggest, it must be a disadvantage that she suffers on account of being a woman (not a man) and a correlative advantage that the members of B get on account of being men (and not women). In short, we should read into the new definition of indirect discrimination that it must be referable to a proscribed ground (in this case, gender).

Let us consider an example that illustrates how a disadvantage can be relevant to a proscribed ground. Let us assume that a requirement for promotion to senior lecturer is 20 years continuous service. Sarah is unable to meet this requirement because she took a leave of absence to raise her children; men in general tend not to have this difficulty. However, how can we establish that the disadvantage of Sarah is related to the gender ground and not a disadvantage that she suffers on account of some non-gender related deficiency? I suggest that the best way to do this is to show that the disadvantage is more common to women than to men.

9 This involves a comparison not just of Sarah with (relevant) men, but of all

(relevant) women with all (relevant) men.

All of which is a rather long-winded way of getting to the point that, although the new definition of indirect discrimination is phrased as a comparison between one person and many people, it can only be sensibly understood as a comparison between two groups of people, distinguished by a proscribed ground. Thus the changes from previous definitions of indirect discrimination may not be as great as previously thought. There is still a comparison of impacts on two groups. Whereas before the test was whether substantially more people outside group A could comply with the criterion than could people within group A, now the

9 An alternative would be to identify the essence of woman. Such an essentialist approach would obviously be contested. In any event, it would be particularly inappropriate to the sort of social inequality generally targeted by equality legislation. Such legislation is concerned with equality not in the abstract but rather in particular contexts.


test is whether the measure puts members of group A at a particular disadvantage compared with members of group B.

As noted earlier, one of the purposes of the new “particular disadvantage” test was to avoid the need for statistical evidence on the “substantially more” test. Perhaps related to this, however, the “particular disadvantage” test also seems to allow a less disparate impact to count as indirect discrimination. This point can be clarified by setting up a schema that identifies different degrees of disparate impact. The following example is intended simply to mark out points on a continuum of disparate impact, but is useful to that extent.

If we call the advantaged people B and the disadvantaged people A (the AB distinction being proscribed), we can envisage the following disparate impacts:

 Measure 1: advantages all B; disadvantages all A;

 Measure 2: advantages all B and many A; disadvantages no B and many A;

 Measure 3: advantages nearly all B and no A; disadvantages some B and all A;

 Measure 4: advantages many B and no A; disadvantages many B and all A;

 Measure 5: advantages some B and no A; disadvantages nearly all B and all A.

 Measure 6: advantages nearly all B and some A; disadvantages some B and nearly all

A;

 Measure 7: advantages nearly all B and many A; disadvantages few B and many A;

As can be seen, disparate impact can arise either because of the number of B who share the advantage or because of the number of A who share the disadvantage. (By “advantage” I mean a measure that a person can satisfy but others cannot; by “disadvantage” I mean a measure that a person cannot satisfy but others can.)

Now any conception of indirect discrimination must include measures 1 for this is categorical both as to A and as to B. Measures 2-5 are all categorical as to either A or B, ie they either confer an advantage on all B or a disadvantage on all A. There are good grounds to say that these should all be included within the conception of indirect discrimination.

10

Measures 6 and 7 are different in that they are salient, not categorical, to the AB ground of distinction. They mark out different levels of salience, measure 6 clearly being more salient than measure 7. We could easily identify other measures that would fall between them or, indeed, that would be more salient than 6 or less salient than 7.

My suggestion is that the changes wrought by the move from “substantially more” to

“particular disadvantage” are (a) that indirect discrimination can now be established intuitively rather than statistically, (b) that measure 5 now counts as indirect discrimination whereas before it did not, and (c) that measure 7 similarly now counts as indirect discrimination whereas before it did not.

Irish constitutional law

The courts’ interpretation of Article 40.1 of the Constitution has, without addressing the terminology, recognised measures 2 as prima facie unconstitutional discrimination, but not

10 As we shall see, Gardner includes them within the concept of direct discrimination.


measure 6. It is thus likely that the dividing line in Irish constitutional law lies between categorical indirect discrimination and salient indirect discrimination, although further case law is necessary to clarify this point.

11 In one sense, however, the concept of indirect discrimination is less important for constitutional law than for statutory law. Unlike the

Equality Acts, Article 40.1 of the Constitution is not confined to particular grounds of discrimination. Accordingly, there is less pressure to portray a measure as a discrimination on a particular ground in order to deem it unconstitutional. That said, it is strongly arguable that the courts apply a more onerous justificatory test to discriminations on particularly objectionable grounds. This affords some practical importance to the courts’ position on indirect discrimination.

In Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999, 12 the Supreme Court considered the constitutionality of section 5 of the Illegal Immigrants (Trafficking) Bill 1999, which limited to 14 days the time limit for seeking judicial review of certain orders made in respect of non-nationals. Keane CJ observed that the section did not “expressly or of itself divide persons into two classes or create a distinction between non-nationals and citizens”, 13 but held that it indirectly applied only to certain non-nationals:

The question still remains whether s.5 of the Bill by this indirect means imposes conditions or restrictions on the exercise of a right by a certain category of nonnationals in a manner that is unfair, arbitrary or invidious so as to constitute unequal treatment within the meaning of Article 40.1 or whether the same is justified by objective reasons other than the mere fact that they affect only that category of nonnationals.

14

The Court concluded that Article 40.1 had not been breached. The formulation of its conclusion, however, confirms that it perceived section 5 of the Bill as imposing an indirect discrimination on the grounds of nationality which had to be justified in order for the Bill to pass constitutional muster:

[E]ven though by their very nature each one of the conditions and limitations which s.5 of the Bills seeks to introduce apply only to non-nationals, the court is satisfied that they are justified by an objective legitimate purpose independent of the personal status or classification of the persons affected by them.

15

In Redmond v Minister for the Environment, 16 the plaintiff challenged the constitutionality of section 47 of the Electoral Act 1992 and section 13 of the European Parliament Elections

Act 1997 on the grounds that the requirement on candidates to pay an electoral deposit of

£300 and £1,000 respectively breached Article 16.1 and 40.1. Herbert J found for the

11 I have expanded my terminology somewhat since I wrote Constitutional Equality Law, mainly by recognising the distinctions within categorical indirect discrimination and salient indirect discrimination, but my conclusions remain basically the same. See Oran Doyle, Constitutional Equality Law (Thomson Round Hall,

2004), at 77-81.

12

13

[2000] 2 IR 360.

14

15

Ibid, at 401.

Ibid, at 402.

Ibid, at 403.

16 [2001] 4 IR 61.


plaintiff on both grounds. With regard to Article 40.1, he noted that the provisions impacted upon persons differently according to their different means:

In my judgment a law which has the effect, even if totally unintended, of discriminating between human persons on the basis of money is an attack upon the dignity of those persons as human beings who do not have money.

17

In short, although the measures did not explicitly discriminate on the grounds of wealth (in the manner, say, of the property qualification for jury service, struck down in de Búrca v

Attorney General 18 ), they were categorically related to such a ground of discrimination. The provisions challenged were further examples of measure 2.

However, a different approach has been taken to indirect discrimination that is only salient to an objectionable ground of discrimination. This is most clearly seen in Norris v Attorney

General, 19 in which both the High Court and the Supreme Court rejected the plaintiff’s contention that the criminalisation of anal sex constituted a discrimination between homosexuals and heterosexuals. McWilliam J in the High Court reasoned as follows:

A certain act is declared to be unlawful. It may be performed by either homosexual or heterosexual men with either men or women. Although it is perfectly obvious that such acts will usually be performed between homosexual males, which is probably what the legislature had in mind, that does not constitute an invidious or arbitrary discrimination against homosexual citizens any more than the statutes making theft an offence constitute an invidious or arbitrary discrimination against congenital kleptomaniacs, supposing that there were such a group of people.

20

On appeal, O’Higgins CJ rejected the argument more tersely, acknowledging neither the discriminatory intent nor the disproportionate impact of the measure on male homosexuals:

The act which constitutes buggery can only be committed by males. It is designated as a crime whether it is committed with a male or a female. It follows that the prohibition applies to the act irrespective of whether it is committed by a homosexual or by a heterosexual male. No discrimination could be involved.

21

The criminalisation of anal sex was an example of measure 6. The Court’s refusal to characterise it as (indirect) discrimination suggests that salient indirect discriminations are not prohibited by Article 40.1.

Gardner on direct discrimination

Anti-discrimination law, at least if applicable to private individuals, poses difficulties for liberals, given that restrictions on discrimination fetter people’s liberty. This is particularly the case with indirect discrimination where the alleged discriminator’s decision-making

17 Ibid, at 80.

18 [1976] IR 38; (1977) 111 ILTR 37.

19 [1984] IR 36.

20 Ibid, at 44.

21 Ibid, at 59.


process appears less tainted than in the case of direct discrimination. Nevertheless, Gardner argues, on the basis of liberal principles, that it is permissible for the state to prohibit both direct and indirect discrimination, but that indirect discrimination remains a secondary instance of the core concept of direct discrimination.

22 My main query is whether Gardner is correct to characterise indirect discrimination as a secondary instance of direct discrimination. To pursue this query, it is first necessary to analyse Gardner’s account of direct discrimination.

Gardner notes that in some circumstances it is considered morally praiseworthy to discriminate (eg as between bullies and non-bullies) whereas in other circumstances it is considered morally blameworthy to discriminate (eg as between whites and non-whites).

23

Any account of anti-discrimination law must identify the difference between morally blameworthy and morally praiseworthy discrimination. In drawing this distinction, Gardner refers to role but primarily to grounds. As an illustration of the importance of role, it may be permissible for a placer of personal ads, but not for an employer or landlord, to discriminate on the grounds of race (no Pacific Islanders need apply).

24 More important for Gardner’s purposes (and for ours) is the question of ground:

What, in other words, makes a given ground of discrimination an improper ground, so that discrimination on that ground is, for the occupants of at least some roles, wrongful discrimination.

25

The traditional explanation turns on rationality. Discrimination on certain grounds is (nearly always) irrational and therefore should be (heavily presumptively) prohibited. Gardner rejects this explanation, correctly in my view. His most compelling reason for rejecting the rationality account of improper grounds of discrimination is as follows:

[T]here patently can be reasons, under some conditions, to discriminate on grounds of race or sex, so that such discrimination need not always be tainted by the basic irrationality of the discriminator. If your other customers will desert the pub when black people come in, or if there is a genuinely higher probability of your women employees being diverted into childcare responsibilities and thus repaying less of your investment in their training, then, like it or not, those are reasons for discriminating against black people and women of child-bearing age respectively.

26

22 Gardner’s views on discrimination are primarily set out in John Gardner, “Liberals and Unlawful

Discrimination” (1989) 9 Oxford Journal of Legal Studies 1, John Gardner, “Private Activities and Personal

Autonomy: At the Margins of Anti-discrimination Law” in Bob Hepple and Erika Szyszczak (eds),

Discrimination: the Limits of the Law (Mansell, 1992), John Gardner, “Discrimination as Injustice” (1996) 16 Oxford

Journal of Legal Studies 367, and John Gardner, “On the Grounds of her Sex(uality)” (1998) 18 Oxford Journal of

Legal Studies 167 (1998). I do not set out his views in chronological order as my concern is not the development of his thought but rather what I take to be his (last-stated) considered position on the issue of indirect discrimination.

23

24

John Gardner, “On the Ground of Her Sex(uality)”, loc cit, at 167. Emphasis original.

25

This is partially my example.

Gardner, “On the Ground of Her Sex(uality)”, loc cit, at 167.

26 Gardner, “On the Ground of Her Sex(uality)”, loc cit, at 168.


Such behaviour may be objectionable on other grounds, such as moral cowardice, but it is not irrational. The explanation of improper grounds of discrimination cannot turn on rationality.

Now Gardner argues, in response to the analysis of Robert Wintemute, 27 that two commonly propounded tests for the recognition of improper grounds of discrimination – immutable characteristics and fundamental choices – are both justified by the liberal ideal of an autonomous life. He describes this as “the ideal of a life substantially lived through the successive valuable choices of the person who lives it, where valuable choices are choices from among an adequate range of valuable options”.

28 Discrimination on the basis of immutable status offends this ideal because it means that our further choices are constrained not mainly by our own choices but by the choices of others:

Because these choices are based on our immutable status, our own choices can make no difference to them. And where the discrimination is endemic enough, we are left with too few valuable options to choose among and we are deprived of valuable choice over large swathes of our own lives.

29

Discrimination on the ground of fundamental choices deprives people of an adequate range of choices throughout their life, because some fundamental choices are foreclosed them.

Gardner recognises that every choice cuts reduces the number of possible future choices.

However, he reasons:

[T]here are some particular valuable options that each of us should have irrespective of our other choices. Where a particular choice is a choice between valuable options which ought to be available to people whatever else they may choose, it is a fundamental choice. Where there is discrimination against people based on their fundamental choices it tends to skew those choices by making one or more of the valuable from which they must choose more painful or burdensome than others.

Where the discrimination in question is endemic, the valuable option may become prohibitively painful or burdensome, and then we are deprived of our choice altogether.

30

On this basis, Gardner describes the duties of non-discrimination as being “autonomy-based duties”, by which I assume he means that a duty that is imposed on X by virtue of Y’s autonomy: X should not act in such a way as to reduce Y’s autonomy. Thus, although

Gardner endorses both the immutable status criterion and the fundamental choices criterion, he effectively sees both as illustrations of a principle of autonomy: anti-discrimination law is justified on liberal principles because it facilitates people in living their lives largely on the basis of their own valuable choices, not the choices of others.

31 However, note that the endemic character of the discrimination is crucial in establishing the wrongfulness of a particular discrimination, for both the immutable characteristics argument and the

27 Robert Wintemute, Sexual Orientation and Human Rights: The United States Constitution, the European Convention,

and the Canadian Charter (Oxford University Press, 1995).

28

29

30

Gardner, “On the Ground of Her Sex(uality)”, loc cit, at 170.

Gardner, “On the Ground of Her Sex(uality)” loc cit, at 171.

Ibid.

31 I shall later return to this qualification of “valuable” choices.


fundamental choices argument. For it is only in combination with other discriminations that a particular discrimination can have (or, more accurately, contribute to) the effect of foreclosing an autonomous life.

32 For it is not restrictions on any particular exercise of autonomy that are problematic (since any exercise of autonomy restricts another person’s exercise of their autonomy), but a fundamental interference with autonomy, ie the foreclosure of an autonomous life.

Gardner hones his account of the wrongfulness of direct discrimination by means of a sophisticated argument as to whether sexuality discrimination can be characterised as a form of sex discrimination. That contention is put by Gardner as follows. Suppose you are a woman with a female sexual partner and you are refused a job when and because you reveal your same-sex relationship. If you had been a man with a female sexual partner in the same circumstances, you would not have been refused the job. Hence this is sex discrimination.

33

Gardner believes, however, that this analysis of sexuality discrimination breaks down when one focuses on the words typically used in anti-discrimination law such as “on grounds of sex” or “by reason of sex”. He distinguishes between two types of premises that are caught by phrases such as “on grounds of” and “by reason of”: auxiliary premises and operative premises. An operative premise provides the actual impulse to action, whereas an auxiliary premise provides information that of itself is of no significance but which gains significance in light of the operative premise. In the above example, therefore, the sex of the person figures in the auxiliary premises of the discriminator but not in the operative premises. Thus, in the above example, the woman’s sex is informationally relevant to working out that she is a homosexual. Guided by the operative premise of discriminating against homosexuals, the employer comes to the conclusion to discriminate against this particular woman.

34

Now Gardner subtly argues that discrimination is wrongful only where an improper ground of discrimination figures in the operative premises. For, as he argued earlier, the whole point of anti-discrimination law is that it is sometimes wrong to act on a proposition that one is rationally correct to believe. For instance, it is wrong for a publican to exclude black people from her pub, even if she is correct to believe that she will lose customers by having black people in her pub. But only an operative premise can be wrong in this way, because only an operative premise has motivational significance. Auxiliary premises, being purely factual, can only be factually correct or factually incorrect:

[T]he wrongfulness of discrimination is fundamentally linked to the fact that an improper ground of discrimination figures in the operative premisses of the discriminator’s thinking. That is the core or paradigm case of wrongful direct discrimination which emerges from our discussion of what makes a ground of discrimination an improper ground.

35

32 In “Liberals and Unlawful Discrimination”, Gardner suggests two ways of taking into account the pervasive character of “harm”. One insists on a strong connection between the pervasiveness of harm and the wrongfulness of discrimination; the other allows the pervasiveness to be mediated through a radical account of unfairness. Given his analysis here, however, it seems that it would be illegitimate for the State to prohibit the latter. For in that situation, there is no foreclosure of valuable choices.





In this way, Gardner plausibly explains, on the basis of liberal principles, why direct discrimination is a sort of wrong that the state may prohibit and why the state is correct to do so using formulae such as “X shall not discriminate on the grounds of AB”.

Gardner on indirect discrimination

Adopting my schema of indirectly discriminatory measures, Gardner would seem to count measures 1-5 (what I call categorical indirect discrimination) as instances of direct discrimination in that he views measures that disadvantage only members of A as discrimination on the grounds of AB, even though (a) the measure is not explicitly presented as such and (b) many members of A are advantaged by the measure. He treats such measures as direct discrimination because the AB distinction is incorporated by logical reference:

[T]he problem of incorporation by logical reference … arises most obviously in pregnancy discrimination cases. An employer may say: I didn’t sack her because she’s a woman, I sacked her because she’s pregnant; that she’s a woman never bothered me at all. The law may answer: Sorry, but since only women can get pregnant, sacking her because she’s pregnant just is a case of sacking her because, among other things, she’s a woman. Being pregnant is a logically sufficient condition of womanhood even though not a logically necessary one, in much the same way that having one’s heart ripped out and having one’s head cut off add up to a logically sufficient condition of death even though not a logically necessary one. So denying that pregnancy discrimination is sex discrimination is just like saying you intended to rip out the heart and cut off the head, but not to kill. One may argue that those who say such things are playing with words, and not offering a serious defence.

36

Gardner would presumably count measures 6 and 7 as instances of indirect discrimination, although this – as we shall see – turns on the extent to which the differential denial of opportunity contributes to the foreclosure of an autonomous life.

Gardner’s analysis of indirect discrimination comes in two places and focuses on two aspects. In “On the Ground of Her Sex(uality)”, he questions whether a prohibition on indirect discrimination can be justified on the basis of the autonomy duties he identifies in relation to direct discrimination. In “Discrimination as Injustice”, he develops his analysis in

“Liberals and Unlawful Discrimination” with a focus on whether a prohibition on indirect discrimination is better understood as an aspect of corrective or distributive justice. This argument is more structural and I will consider it first, before returning to the more justificatory argument in “On the Ground of Her Sex(uality)”.

Gardner describes reasons of justice as reasons for or against altering someone’s relative position.

37 He endorses Aristotle’s distinction between corrective justice and distributive justice and puts the matter thus:

The relativity of corrective justice is, as Aristotle put it, “arithmetic relativity”, whereas the relativity of distributive justice is “geometric”. That is to say, corrective

36 Gardner, “On the Ground of Her Sex(uality)”, loc cit, at 180. Citations omitted.

37 Gardner, “Discrimination as Injustice”, loc cit, at 353. This focus on relative positions implicates justice – as distinct from other political virtues – centrally in anti-discrimination law.


justice regards the relative positions of people in terms of addition and subtraction

(“what was added must be subtracted”, or “what was subtracted must now be added”). Distributive justice, on the other hand, regards the relative positions of people in terms of division (“what there is must be divided up in such-and-such a way”), without responding to past additions and subtractions by the people inter se, and, if cancelling out such additions and subtractions, then doing so only accidentally. That is the key to understanding what differentiates corrective from distributive justice, and it remains the key to understanding the difference whether we are dealing in justice among groups or justice among individuals, whether the reasons of justice in question apply agent-neutrally or agent-relatively, and whether they apply to all candidates for just treatment or only across some special constituency.

38

Applying this set of distinctions to the concept of indirect discrimination, Gardner notes that the law on indirect discrimination comes in two phases. First, it imposes duties on nonjudicial actors not to discriminate indirectly. Secondly and secondarily, it creates a

“framework for the administration of the primary duties whenever, to the law’s disappointment, an (arguable) breach of those duties occurs”.

39 The first phase is a matter of distributive justice, whereas the second phase is a matter of corrective justice. On the first phase as a matter of distributive justice, he reasons:

In committing an act of unlawful discrimination I commit no corrective injustice against anyone. There is no previous act of mine, or anyone else’s, which by discriminating indirectly I am failing or refusing to make up for. What I do is merely apply to apply an unjustifiable standard which people of one sex or race find it harder to comply with than people of another, to the detriment of someone who is a member of the former sex or race. My failure is fundamentally a geometric failure, a failure to divide up in legally acceptable proportions the opportunities over which I exercise control. It is not an arithmetic failure, a failure to replace some opportunity which I, or indeed some other protagonist, earlier subtracted. Of course it happens that in our society someone did earlier subtract opportunities from black people and from women. That is why black people and women are now so seriously disadvantaged, particularly in the labour market. It is also why race and gender have developed their special symbolic importance in our public culture, so that discrimination on these grounds now has the powerful social meaning that it does, making the case for thorough legal regulation so unanswerable, even if it has significant economic or social costs. But the key thing is that the primary legal duty not to discriminate indirectly focuses centrally on the relative disadvantage of some applicants as such rather than on the past actions which established and maintained their relative disadvantage. For that reason it is essentially a duty of distributive, not corrective, justice.

40

38 Gardner, “Discrimination as Injustice”, loc cit, at 358-359. Citations omitted. I do not take any issue with this account of corrective and distributive justice.

39

40

Gardner, “Discrimination as Injustice”, loc cit, at 359. Emphasis original. Citations omitted.

Gardner, “Discrimination as Injustice”, loc cit, at 359-60. Broadly speaking, this account of indirect discrimination law as an instance of distributive justice is plausible, although there are questions over the relevance that Gardner accords to past discrimination. More generally, however, if indirect discrimination law has two phases, one distributive, the other corrective, direct discrimination law must also have two phases. In


Gardner notes that there are different axes of distributive justice in indirect discrimination law. In the employment context, there is distributive justice as between employer and employee, the employer being the subscriber to that distributive justice. There is also distributive justice “between members of groups which find it relatively difficult to meet the employer’s recruitment standards and members of groups which find it relatively easy to do so. In this latter axis, the employer is the agent of distributive justice because, as the distributor of employment opportunities, she is particularly well placed to remedy the distributive injustice. Indirect discrimination law, partly through the justifiability test, keeps both axes of distributive justice in focus.

This analysis helpfully establishes the character of the wrong effected by indirect discrimination. However, it does not directly address why the law is justified in prohibiting such a wrong, the key question for liberals. For this question of legal legitimacy, it is necessary to return to Gardner’s argument in “On the Ground of Her Sex(uality)”, the argument that direct discrimination is legitimately punishable by the state on the ground that it interferes in the autonomy of others; it restricts the valuable choices of certain people.

Having characterised direct discrimination in this way, Gardner then considers the concept of indirect discrimination:

Of course, there can be strong moral reasons to extend the scope of wrongful discrimination beyond this core case. There are various moral arguments, for example, for attending to the discriminatory side-effects of some decisions as well as the discriminatory grounds on which they were reached. These arguments supply the foundation for the secondary paradigm of indirect discrimination (or “disparate impact” discrimination) found in today’s more sophisticated anti-discrimination statutes. For example: prohibitions on direct discrimination alone typically do rather little to expand the options of those who have been discriminated against in the past, when the world has been so comprehensively organized around their absence.

Making progress with the problem may therefore require one not only to control perpetuation of the direct discrimination which was the original source of the problem, but also to add some positive duties to make the options from which those discriminated against were excluded genuinely acceptable and hospitable to them so that they aren’t still excluded in effect even though not on purpose. This is where the indirect discrimination paradigm comes in. But it does not replace the original the first phase, the law imposes an obligation not to discriminate; in the second phase, the law remedies discrimination that has occurred. The second phase is clearly, following Gardner’s analysis, an instance of corrective justice. However, Gardner seems to view the first phase as a matter of corrective justice. I think that he means to refer to previous direct discrimination when he speaks of the past subtraction of opportunities from women and black people. See Gardner, “Discrimination as Injustice”, loc cit, at 360. However, remember that discrimination itself is not wrongful and indeed is sometimes a virtue. What makes discrimination on certain grounds wrongful, for Gardner, is the fact that such discrimination has been pervasive: the people identified by those grounds have had their meaningful life choices significantly curtailed. Thus direct discrimination is not per se an injustice, let alone a corrective injustice. Only the existing distribution of choices can tell us whether the taking away of particular choices through an act of direct discrimination can amount to an injustice. There are, therefore, at least some distributive elements to the wrong of direct discrimination.


paradigm of direct discrimination, on the moral significance of which, as my remarks have just illustrated, it depends for its own moral force.

41

These arguments do seem to support the (presumptive) prohibition of indirect discrimination. However, the relevant questions for present purposes are (a) whether these arguments are derived from a concern for autonomous lives and (b) if so, whether they are derived in a way that makes them secondary to the core paradigm of direct discrimination.

In addressing the first question, Gardner’s crucial point is that positive duties may be necessary to expand the options of those who have been discriminated against in the past, lack of options meaning that one cannot live an autonomous life. This is broadly plausible although some of the assertions are problematic, as will become clear from the focus on the second question.

More problematic is Gardner’s approach to the second question. He describes indirect discrimination as the secondary paradigm. On close examination, it is apparent that he treats it as secondary in a number of ways. First, indirect discrimination is secondary in the sense that it is the product of past direct discrimination: “prohibitions on direct discrimination alone typically do rather little to expand the options of those who have been discriminated against in the past”. This assertion deserves closer attention, lest it be read as suggesting that the prohibition of indirect discrimination is a remedy for previous direct discrimination. The difficulty lies in the phrase “those who have been discriminated against in the past”.

Presumably Gardner is not maintaining that the only cognisable victim of indirect discrimination is a person who was previously the victim of direct discrimination.

42 Instead, he must be stating that indirectly discriminatory practices now constrain the meaningful choices of some members of A because of previous direct discrimination against members of A. But this cannot be a (complete) explanation. For although some grounds of discrimination (eg race) have an intergenerational identity, other grounds (eg sexuality) do not.

That is, the disparate impact of a measure on, say, English people of South Asian origin in the 2000s may result from direct discrimination against English people of South Asian origin in the 1970s and 1980s. In contrast, the disparate impact of a measure on gay people in the

2000s does not result from direct discrimination against gay people in the 1970s and 1980s.

43

For only where the members of one generation are closely related to members of the next generation by family (or perhaps location) is it plausible to say that the choice-restricting effects of direct discrimination are passed on from one generation to the next. Moreover, given that gay people’s choices are restricted by indirect discrimination, even though there is no inter-generational dimension to direct discrimination against gay people, it seems likely that the choice restriction caused by disparate impact is not wholly dependent on previous direct discrimination, even in other situations. Thus even in the case of racial indirect discrimination, it is reasonable to assume that the disparate impact is not entirely the result

41 Gardner, “On the Ground of Her Sex(uality)”, loc cit, at 182-183.

42 As a matter of legal doctrine, such a point would be wholly untenable. And as Gardner’s account purports to be a general justification of legal doctrine, he cannot be taken to be disagreeing on this point.

43 For instance, the criminalisation of anal sex, a paradigm of indirect discrimination, can and does cause its disparate impact on gay men without any history of prior direct discrimination. Indeed, the history of inequality on this ground is largely, on the part of the state at least, a history of indirect discrimination.


of the previous direct discrimination.

those people.

44 In short, indirect discrimination can limit people’s life choices, but such an effect is not necessarily related to previous direct discrimination against

Secondly, Gardner treats indirect discrimination as secondary in referring to “the discriminatory side-effects of some decisions as well as the discriminatory grounds on which they were reached”. This suggests that indirect discrimination is only a matter of side-effect.

But again notice a curious imprecision in the language. Gardner might be read as suggesting that indirect discrimination is the side-effect of decisions based on discriminatory grounds.

But indirect discrimination is more accurately described as the discriminatory side-effect of decisions not based on discriminatory grounds. Viewed in that light, the term “side-effect” is misleading. Indirect discrimination is about the discriminatory effect (disparate impact) of decisions. It is not secondary in the sense of being a side-effect of a decision based on discriminatory grounds.

Thirdly and most importantly, Gardner asserts that indirect discrimination is secondary in that it depends for its moral force on the moral significance of direct discrimination. But given that indirect discrimination cannot plausibly be described as secondary in either of the first two sense mentioned, it is difficult to see the justification for this claim. As presented by

Gardner, the prohibition of direct discrimination derives its moral force from a liberal concern for autonomy. Again as presented by Gardner, the prohibition on indirect discrimination similarly derives its moral force from a liberal concern for autonomy. Even accepting this analysis, there is no basis for saying that one is the primary paradigm and the other the secondary paradigm. The liberal concern for autonomy requires us to be concerned about indirect discrimination irrespective of whether there has been past direct discrimination; the liberal concern for autonomy requires us to be concerned about indirect discrimination even though indirect discrimination occurs independently of decisions based on discriminatory grounds. In short, the prohibition of indirect discrimination does not depend for its moral force on the moral significance of direct discrimination.

On Gardner’s analysis, the only way in which indirect discrimination can be described as secondary is in its lack of discriminatory operational premises. But that is not being secondary; that is being different. Direct discrimination and indirect discrimination restrict autonomy in different ways. Gardner gives no reason why the restriction of choices that attends direct discrimination is any more significant than the restriction of choices that attends indirect discrimination. All that Gardner succeeds in showing is that both direct discrimination and indirect discrimination restrict valuable choices and may therefore be prohibited by the liberal state. In the end, the only thing that is secondary about indirect discrimination is the nomenclature, since “discrimination” implies conscious decisions based on premises (lacking in indirect discrimination) and since “indirect” itself implies secondary.

But Gardner’s thesis cannot be defended on this basis because it aspires, correctly in my view, to be about the soundness of concepts not the meaning of words. If we substitute the term “disparate impact” for “indirect discrimination”, there is nothing left that is secondary.

44 Indeed, consider the situation of a newly arrived racial minority. Surely they could suffer the effects of indirect discrimination even though they were not around to be discriminated against in the past?


More significantly, Gardner’s argument on the secondary character of indirect discrimination glosses over an important aspect of his earlier argument as to why discrimination is wrongful. As we saw, it is the cumulative effect of discrimination that is important, for no discrimination (whether direct or indirect) can on its own foreclose an autonomous life. That is, the state is only justified in prohibiting particular discriminations because of the cumulative effect of many discriminations. Now although it is regressive to argue that one person’s discrimination can be prohibited only because others are discriminating in the same way, it is not regressive to argue that discrimination is wrong where it occurs in a particular context of inequality, ie a context in which the victim of the particular discrimination is already in an unequal position. The foreclosure of choices for that victim is significant precisely because choices have already been foreclosed. In short, impact is of more moral significance than are discriminatory premises.

If this is the core of the justification for treating discrimination as wrongful, indirect discrimination begins to look more closely related to that justification than does direct discrimination. Because the concept of indirect discrimination, at the level of wrong, recognises the importance of impact that, at the level of justification, is central. In short, indirect discrimination fits closer than direct discrimination the state’s true justification for prohibiting discrimination at all. It is a far from perfect fit, however, because although it is sensitive to the issue of impact, it is insensitive to the significance of pre-existing, pervasive impact. Gardner renders the pervasiveness of impact central by basing the wrongfulness of discrimination on the foreclosure of autonomy. It is now necessary to revisit this contention.

Autonomy as a justification for discrimination law

Gardner’s liberal defence of anti-discrimination law turns on autonomy. However, it is not autonomy simpliciter that Gardner has in mind: it is the autonomy to choose between valuable choices, some choices not being valuable. In the context of sex and sexuality, Gardner reasons as follows:

Whether a choice is valuable depends, as I said before, on whether it is a choice between valuable options. This means that not every choice concerning one’s own sexuality is made fundamental by the fact that some are. Choosing to have sex with people of one’s own sex rather than with people of the opposite sex can be fundamental, because a choice between two valuable options, even though choosing to have sex with children or dead bodies rather than living adults would not be, since that is in each case a choice between a valuable option and a base or demeaning one.

45

In this passage, Gardner maintains that a choice is valuable (fundamental) only where it is a choice between two valuable options. But this avoids the crucial question of how we identify what options constitute the choice being made. It seems possible to do this in one of two ways: empirical observation or analytical construction. It seems unlikely that empirical observation would reveal that the same course of behaviour uniformly follows from the same choice. For instance, C might choose gay adult sex over straight adult sex (a valuable and fundamental choice because made between two valuable options) while D might choose gay adult sex over gay child sex (a non-valuable choice because made between a valuable



option and a demeaning option). On Gardner’s account of anti-discrimination law, therefore, the choice of C should be protected but not the choice of D. This is clearly not what anti-discrimination law does. Further the preferential treatment of C over D where, if anything, the choice of D is more praiseworthy would surely mitigate against framing antidiscrimination law in these terms.

Analytical construction of the choice could avoid these problems but in a seriously questionbegging way. Why posit that the relevant choice is between gay adult sex and straight adult sex? Any feeling that this is appropriate surely turns on the perceived significance of the gay/straight distinction, a significance that has not yet been established. In truth, all Gardner has established is that the choice of valuable options should be protected. Thus both C and

D deserve protection not because of what they chose between but because of what particular

option they chose. The problem with this line of argument, for Gardner, is that it undermines his core concept of autonomy that lies at the heart of his liberal defence of antidiscrimination law. For the duty owed to C and D derives not from the fact that they have chosen (between valuable options) but rather from the fact that they have chosen well.

Reasoning further, it is not the pervasive foreclosure of autonomy that justifies discrimination law, but the pervasive foreclosure of certain options. The duties imposed by anti-discrimination law serve not to protect autonomy but instead to protect certain ways of life decided to be valuable.

In this way, the liberal defence of anti-discrimination law is fundamentally undermined.

However, the idea of protecting against the foreclosure of certain options has the potential to undermine anti-discrimination law itself. For the foreclosure of certain options, if wrong, is not a comparative wrong but a substantive wrong. It affords protection to gay people (for example) not because it is wrong to discriminate between gay and straight people but because homosexuality of itself and on its own terms deserves to be protected: it is a valuable option. Although anti-discrimination law might contribute to such protection, its comparative methodology does not fit well with the substantive character of its justification.

For this reason, we cannot simply tweak Gardner’s account, substituting “options” for

“choices”, and provide a compelling defence of anti-discrimination law. We must start from a different place.

Equality and anti-discrimination law

I propose here simply to sketch an alternative account of anti-discrimination law that is based on egalitarian duties, not autonomy duties. The account itself is not novel, 46 but its juxtaposition with Gardner’s autonomy account and the current context of indirect discrimination may cast certain elements in a new light.

One function of a political community is to distribute goods among its members. Although a just distribution of goods turns primarily on non-comparative principles, comparative principles are also relevant. The chosen distribution of goods sends a message about the recipients and non-recipients of the goods. Sometimes the message is that one group of citizens is intrinsically inferior to another group. The core egalitarian principle states that it is wrong to send such a message. It is not acceptable for a political community to demean a group in this way. The political community sends such a message where it further

46 For a working out of this idea, see Doyle, Constitutional Equality Law, op cit, at 212-251.


subordinates an already subordinated group. Gardner places emphasis on an analogous concept, the expression of profound disrespect.

47 However, he believes that such a message comes from the ground of classification not the impact of measures:

[I]n our society someone did earlier subtract opportunities from black people and from women. That is why black people and women are now so seriously disadvantaged, particularly in the labour market. It is also why race and gender had developed their special symbolic importance in our public culture, so that discrimination on these grounds now has the powerful social meaning that it does, making the case for thorough legal regulation so unanswerable, even if it has significant economic and social costs.

48

Now, as already noted the moral significance of neither direct nor indirect discrimination depends on previous direct discrimination. It is thus difficult to see why a message of profound disrespect can only be sent by such direct discrimination. Indeed, if Gardner’s explanation were correct, it is difficult to see how direct or indirect discrimination on the grounds of sexuality could have obtained its social meaning of profound disrespect, a meaning with which he implicitly agrees. For as was noted above, the history of discrimination on this ground is one of disparately impacting measures. If we accept, as

Gardner seems to, that such discrimination sends a message of profound respect, we must accept that messages of profound disrespect do not arise solely on account of a history of disadvantage created by indirect discrimination. A message of profound disrespect is also sent, I suggest, where society, observing that a particular group is already in a subordinate position, persistently aggravates that position of subordination.

49

The idea, latent in Gardner’s analysis, of disparate impact in the context of existing inequality, here comes to the fore. It is no longer, however, a secondary instance of a more pure concept, but the focal case of inequality. The significance of existing inequality is not hidden away in the substructure of the assumptions that underlie the proscribed grounds, but is instead foregrounded as a requirement that must be met if an inequality is to be established. This allows for a more contextual approach to equality claims. No longer must particular groups seek to piggyback on universal terms derived from the experiences of others; instead, they may seek to demonstrate inequality by focusing on the facts of their own existence. Such an approach does not deny that direct discrimination can be troublesome; we should be concerned with direct discrimination where the effect of it is to subordinate further an already subordinated group.

Equality – states of denial

I have suggested that treating direct discrimination as a more important wrong than indirect discrimination cannot be justified on the grounds of liberal principles and that there are serious doubts about the liberal justification for anti-discrimination law. In its place, I have outlined a justification of anti-discrimination law that focuses more on the substantive impact of measures. The result of (wrongly) adopting the liberal account of anti-

47 Gardner, “Discrimination as Injustice”, loc cit, at 360 fn.

48 Idem.

49 Constitutional texts reach towards this idea with concepts such as “dignity”. This does not, however, fully capture the comparative character of the wrong done.


discrimination law at the expense of the substantive account is that one becomes blinded to certain aspects of social reality that, under the substantive account, have considerable moral significance. In this way, current anti-discrimination law when taken with its liberal defence can be characterised as contributing to a state of denial, a denial that we should be concerned with certain practices that, properly understood, are deeply inegalitarian. This denial is particularly insidious, however, because it portrays the denial of equality implicit in current anti-discrimination law as the achievement of equality. For present purposes, I wish simply to sketch a number of ways in which current anti-discrimination law wrongly focuses our attention:

 Anti-discrimination focuses on wrongs that are done to individuals qua individuals, rather than wrongs done to individuals qua members of particular groups.

 The focus of anti-discrimination law is the process by which measures are adopted, not the effects of those measures.

 In turn, this focuses anti-discrimination law on the discriminator – the agent of discrimination, not the victim. Discriminatory premises are elevated over discriminatory effects.

 This focus on the perpetrator tends to demand a particular attitude or state of mind on her part in order for a measure to be classed as discriminatory – irrationality, prejudice, hostility. The attitude of the discriminator is clearly irrelevant to her victims.

 Anti-discrimination law is falsely universalising: it attributes special treatment to some racial groups simply because other racial groups have suffered from inequality.

 Anti-discrimination law has a unitary notion of an equality harm, across all grounds of discrimination. In contrast, the substantive account treats does not assume that the subordination of one group takes the same form as the subordination of another group. It is thus more alert to the different structures of inequality and accordingly is more adaptable to changes in structures of inequality.

 Anti-discrimination law wrongly aspires to symmetry. Neither in principle nor in practice should we be as concerned about measures that disadvantage superordinate groups as we are about measures that disadvantage subordinate groups.

Now one could argue that the standard anti-discrimination account and the substantive account are simply two ways of describing the same reality, according moral significance to different features of that reality. However, this paper has gone some way to showing that the anti-discrimination account, at least as defended on the basis of liberal principles by

Gardner, does not provide a morally coherent account of anything. For this reason, there are some grounds for tentatively suggesting that the aspects of reality recognised by the substantive account are actually of greater moral significance.


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