Distinguishing Between Direct and Indirect Discrimination

What is it about?

Many legal systems differentiate between direct and indirect discrimination (or between disparate treatment and disparate impact). However, it is not clear how this distinction should be understood. In this article, we consider two commonly discussed ways of drawing the distinction. On the first, acts of direct discrimination are, in some sense, intentional, while acts of indirect discrimination are unintentional. On the second, direct discrimination applies where the alleged discriminator acted on a provision or criterion that singles out people for differential treatment based on whether they possess a protected characteristic (such as race or sex). By contrast, indirect discrimination applies where the alleged discriminator acted on a provision or criterion that was neutral on its face (ie made no reference to a protected characteristic). We argue that neither of these ways of drawing the distinction is satisfactory. We then offer an alternative, according to which direct discrimination occurs where the discriminator accords adverse treatment to the complainant, and treats the complainant’s possession of a protected characteristic as a factor in favour of according the complainant that treatment. By contrast, indirect discrimination is made out where the discriminator did not treat the complainant’s possession of a protected characteristic as a factor in favour of according the complainant adverse treatment but, nevertheless, acted in a way that disproportionately disadvantaged members of a group of which the complainant is a member, that is marked out by their possession of a protected characteristic. We argue that, when understood in this way, the distinction between direct and indirect discrimination tracks some morally significant differences between types of discriminatory conduct.

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Photo by Peter Schulz on Unsplash

Photo by Peter Schulz on Unsplash

Why is it important?

The distinction between direct and indirect discrimination plays a significant role in (inter alia) English anti-discrimination law. For instance, the scope of the alleged discriminator to establish a justification in respect of the alleged discriminatory conduct is much greater in respect to a claim of indirect discrimination than it is in respect of a claim of direct discrimination. Moreover, the remedies available pursuant to a successful claim of indirect discrimination will, at least in some respects, be less onerous on the discriminator than are the remedies available pursuant to a successful claim of direct discrimination. The distinction between direct and indirect discrimination articulated in the article is both capable of coherent application, and tracks some morally important differences between different types of discrimination.