Around the world the principle of equality is something which the law strives for. The equality principle varies to different degrees in different parts of the world as well as in different countries.
In Britain it was not until the 1960s and later the 1970s where acts such as the Race Relations Act 1965, the Disability Discrimination Act 1995 and the Sex Discrimination Act 1975 came into being and sought to guarantee the notion of equality.
Authors of the book Anti-Discrimination Law In Britain, C. Bourn and J. Whitmore stress that the purpose of Part 1 of the Sex Discrimination and Race Relations Acts was to set into stone two basic types of discrimination – direct discrimination and indirect discrimination.
What Is Discrimination?
Discrimination occurs when a person is treated less favourably than another person in a similar situation and this treatment cannot be objectively and reasonably justified.
Should a person be treated unfairly in areas of public life such as employment, recruitment, customer service and advertising on the basis of their disability, race, gender, sexual orientation, pregnancy or marital status, then this amounts to unlawful discrimination.
Direct Discrimination
There are two types of discrimination: Direct discrimination and Indirect discrimination.
Bourn and Whitmore define direct discrimination as: “Discrimination which entails treatment of a person on one of the aforementioned grounds (for example, gender), which has an adverse impact on him or her by comparison with the treatment afforded to persons not of the group in question”.
In Britain direct discrimination was established in section 1(1)(a) of the Sex Discrimination Act 1975.
Section 1(1)(a) of the Sex Discrimination Act 1975 states that: “a person discriminates against a woman in any circumstances relevant to the provision if on the grounds of her gender he treats her less favourably than he treats or would treat a man”.
So for example, were a company to advertise the following: “Catering staff wanted, applications from women shall not be accepted”, this directly discriminates against women and is illegal in the UK.
Indirect Discrimination
Discrimination law author M. Connolly points out that the concept of indirect discrimination has its origins in the American Civil Rights Act 1964.
Although the Act itself contained no specific definition of indirect discrimination, the U.S Supreme Court recognised indirect discrimination and sought to outlaw it argued Connolly.
The Sex Discrimination Act 1975
The Sex Discrimination Act 1975 holds that a person indirectly discriminates against a woman if he applies to her a requirement or condition which he applies or would apply to a man.
If the proportion of women who can comply with this requirement or condition is considerably smaller than the proportion of men who can comply with it, then this amounts to indirect sexual discrimination.
Examples of Indirect Discrimination
An example of indirect discrimination on the grounds of sex would be six-foot height restrictions for entry into the police force.
Connolly stipulates another example of indirect discrimination in the case of Griggs v Duke Power Company US.
In the case of Griggs v Duke Power Company US, an employer demanded aptitude tests be taken as well as a high school graduation certificate in order that the employees be eligible for promotion.
This however, meant that Afro-Americans were excluded because they were less likely to score highly and a claim of indirect discrimination succeeded because inequality in educational achievement was so well known that the employer could hardly deny knowledge that the demands for High School Diplomas would adversely affect blacks.
What Are The Differences Between Direct And Indirect Discrimination?
Unlike direct discrimination, indirect discrimination is not always intentionally perpetrated.
In addition, direct discrimination proceeds from an individualistic, personal complaint to the situation faced, whereas indirect discrimination is concerned with group disadvantage and group rights.
This critical difference Connolly points out means that indirect discrimination law has the potential to recognise the ethical demands that society should make in order to secure some degree of progress in the law.
Another difference is the fact that direct discrimination cases are easy to prove, whilst indirect discrimination cases are harder to prove.
Employers can evade indirect legislation via loopholes, narrow interpretations and regulations.
Now regulations and laws are in place in most Western countries to outlaw both direct and indirect discrimination. However, cases continue to arise which prove that discrimination still occurs.
According to Discrimination Law expert S. Fredman, women, ethnic minorities, homosexuals and disabled people are still disproportionally disadvantaged.
See also: The Philosophies of Punishment
Sources: Bourn, C., and Whitmore, J., (1996) Anti-Discrimination Law in Britain (Sweet and Maxwell Limited: London).
Connolly, M. (2004) (Second Edition) Townshend – Smith on Discrimination Law Text, Cases and Materials, (Cavendish Publishing Limited: London).
Equality Act (Sexual Orientation) Regulations 2007, Redcar and Cleveland Borough Council, pp:1 – 4.
Fredman, S. (2002) Discrimination Law (Oxford University Press: Clarendon).
Hepple, B., Coussey, M., Choudhury, T., (2000) Equality: A New Framework, Report of the Independent Review of the Enforcement of the UK Anti-Discrimination Legislation, The University of Cambridge Centre for Public Law and Judge Institute of Management Studies, (Hart Publishing: Portland, Oregon).
Join the Conversation