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Should diagonal discrimination claims be allowed?

Published online by Cambridge University Press:  02 January 2018

Gareth Davies
Gareth Davies*
Affiliation:
Department of European and Economic Law, University of Groningen
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Abstract

Sometimes a rule is formally equal, but the people disadvantaged by it are in fact disproportionately of a particular sex, or colour, or religion. They may be able to bring a legal challenge to the rule, on the basis that it discriminates against them indirectly; because part-time workers are disproportionately female, rules disadvantaging part-time workers have been found to be indirect discrimination against women. However, what about the male part-time worker? Can he bring no challenge? It is the nature of indirect discrimination that there will always he such atypical victims. They are persons who suffer the harm of the rule, but cannot claim that it discriminates against persons their sex, or colour, or religion. They might he the straight man disadvantaged by a rule that overwhelmingly hinders gay people, or the Christian suffering from a rule that mostly prejudices Muslims. If these ‘minority discriminees’ cannot sue, while their colleagues of a different sort can, then a new context of discrimination arises. This raises a number of surprisingly complex practical and theoretical legal problems. In the light of new European Community directives dramatically increasing the categories of prohibited indirect discrimination those problems have become more immediate. This article therefore looks at Community law, and UK arid US cases, to answer the question above. It also extrapolates the problem to multiple discrimination situations: what about a rule tending to disadvantage Muslim women, but also harming their few non-Muslim male colleagues?

Type
Research Article
Information
Legal Studies , Volume 25 , Issue 2 , July 2005 , pp. 181 - 200
Copyright
Copyright © Society of Legal Scholars 2005

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References

1. See eg S Deakin and G Morris Labour Law (London: Butterworths, 3rd edn, 2001) pp 571–577: Case 170/84 Bilka-Kaufhaus [1986] ECR 1607 at paras 29–30; Case C-237/94 O'Flynn [1996] ECR 1–2617 at paras 18–19: Case C-281/98 Angonese [2000] ECR I-441 at para 41.

2. Case C-96/80 Jenkins [1981] ECR 911.

3. See B Markesinis ‘Privacy, Freedom of Expression, and the Horizontal Effect of the Human Rights Bill: Lessons from Germany’ (1999) 115 LQR 47; T Hartley Foundations of EC Law (Oxford: Oxford University Press, 5th edn, 2003) pp 213–223.

4. See Directives 2000/78/EC OJ 2000 L303/16 and 2000/43/EC OJ 2000 L180/22. See generally M Bell European Union Anti-Discrimination Law (Oxford: Oxford University Press. 2002).

5. On multiple discrimination see Hannett, S Equality at the intersections: the legislative and judicial failure to tackle multiple discrimination?’ (2003) 23 OJLS 65 CrossRefGoogle Scholar; Fredman, S Equality: a new generation’?(2001) 30 ILJ 145 CrossRefGoogle Scholar at 157–160.

6. See above n 4.

7. See P Craig and G de Burca EU Law (Oxford: Oxford University Press, 3rd edn. 2003) pp 339–341 and 420–424.

8. See eg Case C-13/94 P and S [1996] ECR 1–2143; Case 106/83 Sermide [1984] ECR 4209; Case C-267/88 Gustave Waidart [1990] ECR I––435; Case 20/71 Sabbatini [1972] ECR 345 establishing sex equality as an independent general principle; Hartley, above n 3, pp 153–154.

9. See Craig and de Burca, above n 7, pp 339–341.

10. See P J G Kapteyn and P VerLoren in L Gormley (ed) Introduction to the Law of the European Communities (The Hague: Kluwer Law International, 1998) pp 499–507.

11. The court places a high value on uniformity and maintains a tight control over ‘Community concepts’. See Craig and De Burca, above n 7, pp 472–473; Case 66/80 International Chemical Corpn [1981] ECR 1191; Case 75/63 Hoekstra [1964] ECR 177.

12. See M A Case ‘How High the Apple Pie? A Few Troubling Questions about Where, Why, and How the Burden of Care for Children Should Be Shifted’ (2001) 76 Chi-Kent LR 1753–1786. Cf M Becker ‘Care and Feminists’ (2002) 17 Wis Women's LJ 57–110. See also R B Levinson ‘The meaning of sexual equality: a comparison of the Soviet and American definitions’ (1989) 13 NY Law School J Int and Comp Law 151–182.

13. See above n 2.

14. The situation in London Borough of Hammersmith and Fulhum v VJ Jesuthasan [1998] 2 CMLR 940, CA. The court appeared to accept the argument of counsel that: ‘The corollary of a provision which discriminates against women, such that it has to be disapplied at the suit of any woman, is that it must necessarily be disapplied in the case of a man: otherwise, a requirement or condition would exist and be applied in the case of a man which would not lawfully be applied in the case of a woman. In other words, a situation would be created in which a man would be entitled to complain of direct discrimination contrary to the provisions of EC law implemented to eliminate sex discrimination between men and women in employment’ (at [25]-[26]). This comment must be seen in the light of the fact that regulations had already been declared to be non-applicable to women by the House of Lords in R v Secretary of State for Employment, exp Equal Opportunities Commission [1995] 1 AC 1. Given this fact, the statement should not be taken to be as broad as it seems.

15. South Ayrshire Council v Milligan 2003 SLT 142, [2003] IRLR 153.

16. Preston v Wolverhampton Healthcare NHS Trust [2001] 1 CMLR 46, [2001] 2 AC 455, HL.

17. London Borough of Hammersmith and Fulham v VJ Jesuthasan [1998] 2 CMLR 940, CA.

18. Although in fact it now is-but as a result of the connection with sex discrimination. See N Busby ‘The part-time workers (prevention of less favourable treatment) regulations 2000: righting a wrong or out of proportion?’ [2001] JBL 344.

19. See eg C Barnard EC Employment Law (Oxford: Oxford University Press, 2nd edn, 2000) pp 224–226; and C Waddington and M Bell ‘More equal than others: distinguishing EU equality directives’ (2001) 38 CML Rev 587 at 592.

20. Although Waddington and Bell, above n 19, take the view that the new directives do allow the use of hypothetical comparators.

21. See J Jowell ‘Is equality a constitutional principle’? (1994) 47 CLP 1.

22. Jowell, above n 21.

23. See below n 24.

24. A view that could be argued on the basis of Article 14 of Directive 2000 /43/EC and Article 16 of Directive 2000/78/EC, above n 4. which both provide that any laws contrary to equal treatment are to be abolished, and any private rules contrary to equal treatment ‘are or may be declared null and void’.

25. Or perhaps, the laws may be void, not voidable. See above n 24.

26. See text above n 14.

27. See Craig and de Burca, above n 7, pp 387–388.

28. Case C-224/01 Köbler v Republik Österreich, judgment of 30 September 2003. See also above n 9.

29. See Craig and de Burca, above n 7, pp 234–257, for discussion of this law.

30. See eg Case 77/69 Commission v Belgium [1970] ECR 237; Case 280/83 Commission v Italy [1984] ECR 2361; Case 33/76 Rewe-Zentralfinanz v Landwirtschafiskammer für das Saarland [1976] ECR 1989; Case C-213/89 Factortame [1990] ECR I-2433. See generally C Kilpatrick, T Novitz and P Skidmore (eds) The Future of Remedies in Europe (Oxford: Hart Publishing, 2000).

31. C Ovey and R White Jacobs and White European Convention on Human Rights (Oxford: Oxford University Press, 3rd edn, 2002) p 407; Human Rights Act 1998, s 6.

32. W Wade ‘The UK's bill of rights’ in Hare and Forsyth (eds) Constitutional Reform in the UK: Practice and Principles (Oxford: Hart, 1998); G Phillipson ‘The Human Rights Act, “Horizontality” and the Common Law: a bang or a whimper?’ (1999) 62 MLR 824 at 826–829; A Young Remedial and substantive horizontality: the common law and Douglas v Hello! Ltd [2002] PL 232.

33. See Phillipson, above n 32.

34. Wainwright v Home Office [2003] 4 All ER 969. The European Court of Human Rights has said that member states, as well as not actively violating rights, have an obligation positively to protect individuals from violations of rights by others, and to provide legal redress for such violations. That obligation extends to all state organs including courts. Section 6 of the Human Rights Act 1998 translates this to enforceable UK law. The House of Lords avoided this by following the view of Lord Hoffmann that the positive obligation is not in fact an element of the rights themselves. Since s 6 only obliges courts to respect the rights, they are therefore not bound by the positive obligation. Rather, the positive obligation is, Lord Hoffmann asserted, an extra duty which states incur in international law by signing the Convention, but which is not an element of the rights themselves, and so has not been domesticated by the act. This is not correct. All actions against Member States before the European Court of Human Rights are based on violations of substantive rights. In finding, in a number of cases, that member states were in violation by not protecting or providing redress, the European Court of Human Rights was therefore necessarily finding that such positive duties are indeed inherent parts of the rights.

35. See eg Case C-249/96 Grunt v South West Trains [1998] ECR I-621 and Case C-13/94 P v S & Cornwall Country Council [1996] ECR I-2143 for examples of the incomplete reasoning in this area, leaving many questions open.

36. See C Barnard ‘The principle of equality in the Community context’ (1998) 57 CLJ 352 at 371–372. One could also say the court prefers an individual justice model to a group justice one: see McCrudden, below n 41.

37. See Bell's discussion of the ‘anti-discrimination’ model in eg France and Spain in Bell, above n 4, ch 6; K Berthou ‘New hopes for French anti-discrimination law’ (2003) Int J Comp Labour Law and Industrial Relations 109, Spring; C Wallace ‘Indirect sex discrimination in the French legal system’ (2000) 20 LS 397; but of the German position explained in D Schiek ‘Sex equality law after Kalanke and Marshall’ (1998) 4 ELJ 148.

38. See T Tridirnas The General Principles of EC Law (Oxford: Oxford University Press, 1999) p 73; E Ellis ‘Recent developments in EC sex equality law’ (1998) 35 CML Rev 379 at 404–406; F Mancini and S O'Leary ‘The new frontiers of sex equality law in the European Union’ (1999) 24 EL Rev 331 at 341–346.

39. See generally N Nic Shuibne ‘Free movement of persons and the wholly internal rule: time to move on?’ (2002) 39 CML Rev 731; and G Davies Nationality discrimination in the European internal market (The Hague: Kluwer Law International, 2003) ch 7, pp 117–144 ‘the wholly internal situation’.

40. Somewhat similar arguments could be made with reference to the European Convention of Human Rights, Articles 6 and 14, which together prohibit discrimination in the determination of civil rights. However, the European Court of Human Rights has been strict in confining this to procedural matters, so that an argument might be thought unlikely to succeed. A court is not guilty of discrimination within Articles 6 and 14 merely for applying discriminatory law, but only if it does so in a discriminatory way. Yet, on the other hand, the court did say in Belgian Linguistic (judgment of 23 July 1968, Series A, No 6) ‘Article 6 does not compel states to institute a system of appeal courts … However, it would violate that Article, read in conjunction with Article 14, were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions’. It cannot be said that the matter is entirely beyond argument. See Ovey and White, above n 31, pp 348–349.

41. One of the possible readings of equality, see C McCrudden ‘Theorising European Equality Law’ in C Costello and E Barry (eds) Equality in Diversity: The New Equality Directives (Dublin: Irish Centre for European Law, 2003) pp 1–39.

42. South Ayrshire Council v Milligan 2003 SLT 142. [2003] IRLR 153; Preston v Wolverhampton Healthcare NHS Trust [2001] I CMLR 46, [2001] 2 AC 455, HL; and London Borough of Hammersmith and Fulham v VJ Jesuthasan [1998] 2 CMLR 940. CA.

43. Text associated with above nn 14–17.

44. See somewhat similarly, S Fredman ‘European Community Discrimination Law: A Critique’ (1992) 21 ILJ 119 at 129: Davies, above n 39, pp 130–137.

45. See above n 9.

46. I am grateful to an anonymous referee for this point.

47. D Cole ‘Strategies for difference: litigating for women's rights in a male world’ (1984) 2 Law and Inequality 33 at 37; N Morrison Torrey ‘Indirect discrimination under Title VII: expanding male standing to sue for injuries received as a result of employer discrimination against females’ (1989) 64 Wash LR 365 at 365.

48. Morrison Torrey, above n 47.

49. See T Makkonen ‘Multiple, compound and intersectional discrimination: bringing the experiences of the most marginalized to the fore’, research report no 11 of the Abo Akademi University Institute for Human Rights, available at www.abo.fi/instut/imr; Hannett, above n 5.

50. Makkonen, above n 49.

51. See Hannett, above n 5, and the many references therein.

52. Law Society v Kamlesh Bahl [2003] IRLR 640.

53. A number of cases have involved sports, and universities, and the obligation of the latter to provide for the former in a non-discriminatory way. While being able to show generally equal support for men's sports and women's sports and white sportspersons and black sportspersons, it appears that most of the traditional women's sports were dominated by white women and seen as ‘white sports’. Thus black sportswomen argued, sometimes successfully, that they were being deprived of equal support. See T M Evans ‘The black female athlete is left to finish last: the lack of access for “the invisible woman”’ (1998) 42 How LJ 105. See also M Marmo and H Queneau ‘Sex harassment: does race matter’? (2000) 2 J Employment Discrimination Law.

54. See Case C-167/97 Seymour-Smith [1999] ECR I-623. The definition in the new directives is apparently slightly more restrictive. requiring that a measure would put a particular group ‘at a particular disadvantage’. However, it is widely thought that this is likely to be interpreted to be at least no harder on the claimant than existing definitions of indirect discrimination. such as in Seymour-Smith and Case C-237/94 O'Flynn [1996] ECR I-2617, particularly since the form in the directives does have a certain Community legislative history (See Prechal, below), and given the burden of proof directive, Directive 97/80/EC OJ 1998 L14/6 and the non-regression clauses contained in both new directives (Directive 2000/43/EC, Article 6; Directive 2000/78/EC, Article 8, both above n 4). See S Prechal ‘Equality of treatment, non-discrimination, and social policy: achievements in three themes’ (2004) 41 CML Rev 533 at 535 and 542–547; Waddington and Bell, above n 19. at 592–595. Both emphasise that the new directive may relieve the claimant of the burden of statistical proof, rather than denying it to him.

55. See Directive 97/80/EC (burden of proof in sex discrimination cases) OJ 1998 L14/6 and Article 8 of Directive 2000 /43/EC, above n 4, and Article 10 of Directive 2000/78/EC, above n 4.

56. See above n 54.