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An International Comparison of the Racial Discrimination Act 1975 (2008) - Chapter 3: Direct and Indirect Discrimination

An International Comparison of the Racial Discrimination Act 1975

 

Chapter 3: Direct and Indirect Discrimination


3.1 Statutory Definitions of Discrimination

3.2 Non-Statutory Definitions of Direct and Indirect Discrimination

3.1 Statutory Bases of Direct and Indirect Discrimination

Of the five jurisdictions under consideration, only three (Australia, the European Union and the United Kingdom) provide a statutory basis for prohibiting direct and indirect discrimination. These statutory provisions are set out below:

Table 3. Statutory Provisions Prohibiting Direct Discrimination
Australia
“It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”[1]
European Union
“direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in comparable situation on grounds of racial or ethnic origin.”[2]
United Kingdom
“on racial grounds he treats (a person) less favourably than he treats or would treat other persons.”[3]

 

Table 4. Statutory Provisions Prohibiting Indirect Discrimination

 

Australia
“Where:
  1. a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstance of the case; and
  2. the other person does not or cannot comply with the term, condition or requirement; and
  1. the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”[4]
European Union
“indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other person, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”[5]
United Kingdom (discrimination on E.U. directive grounds)
“A person also discriminates against another if... he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but—
  1. which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
  2. which puts that other at that disadvantage, and
  1. which he cannot show to be a proportionate means of achieving a legitimate aim.”[6]
United Kingdom (discrimination on non-E.U. directive grounds)
“he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but—
  • (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
  • (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
  • (iii) which is to the detriment of that other because he cannot comply with it.”[7]

 

In the case of the United Kingdom, the Race Relations Act 1976 (UK) currently includes two definitions of indirect discrimination. In order to comply with its obligations under the E.U. Racial Equality Directive, the United Kingdom introduced a new test in 2003, which more closely, although not precisely, mirrors the Directive definition of indirect discrimination. At the same time, a ‘pre-Racial Equality Directive’ test continues to apply in areas which are not covered by the directive, such as discrimination on the basis of nationality and colour (as distinct from the ‘directive grounds’ of race, ethnic or national origin), discrimination by associations and discrimination by government authorities which does not relate to social security, health care, social protection and social advantages.[8] Just how this distinction will operate in practice is unclear, and may lead to some of confusion. This is especially true since indirect discrimination on the grounds of colour and nationality will often also be capable of characterisation as indirect discrimination on the grounds of either race or national or ethnic origin.

 

Of these four statutory bases for identifying direct and indirect discrimination, only the Australian provisions describe conduct which is unlawful in itself, regardless of the situation in which it occurs. The U.K. and European Union provisions merely define discrimination, which is then declared to be unlawful in certain prescribed areas (as described in Chapter 4).

In each jurisdiction, conduct which places those in a particular racial group at a disadvantage is prescribed, unless it can satisfy some kind of ‘reasonableness’ or ‘necessity’ test. Under the Australian test, a requirement will not be considered discriminatory if it is “reasonable having regard to the circumstances”. This test of ‘reasonableness’ has been described by the courts as “less demanding than one of necessity, but more demanding than one of convenience”.[9] In comparison, the European Union test is stricter, exempting only those conditions which are “appropriate and necessary” to achieve a legitimate aim.[10] Of the two U.K. tests, the pre-directive test requires the condition to be “justifiable”, while the post-directive test requires that the condition be “a proportionate means of achieving a legitimate aim”. This second definition may still fall short of the E.U. standard of ‘necessity’, since it could be interpreted to allow measures which are proportionate (taking into account the detriment suffered and the importance of the aim), but which are not ‘necessary’ since better, alternative means of achieving the goal are available. It is also possible, however, that the U.K. courts will take the Directive into account when interpreting this section, and thus lean towards a stricter test which fulfills the Directive obligations.

The U.K. test of indirect discrimination also falls short of the E.U. Directive due to the fact that it fails to cover indirect discrimination which relates to future or possible events. It prohibits discrimination which “puts... (the complainant) at that disadvantage”, but does not prohibit discriminatory criteria which, it may be anticipated, would put persons of a particular racial group at a disadvantage, but has so far not been applied to anyone of that racial group.[11] The United Kingdom has currently received a letter of formal notice from the E.U., requiring it to take further steps to implement the Directive or risk legal sanctions.[12]

The language of the Australian legislation, which states that “a person... requires another person to comply with a term... (and) the other person does not or cannot comply” seems to suggest that the Australian legislation, as in the United Kingdom, deals only with actual events and not with potentially discriminatory conditions.

3.2 Non-Statutory Definitions of Direct and Indirect Discrimination

Neither Canada nor the United States expressly define discrimination in their statute law. In both countries, however, jurisprudence has developed a concept of discrimination which includes an element of indirect as well as direct discrimination.

In the United States, the key case is Griggs v Duke Power Co., in which the court held that the 1964 Civil Rights Act “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”[13] Practices which have an adverse impact on a protected group will be unlawful unless it can be shown that they are ‘related to job performance’ and ‘business necessity’. Even where an employer can show that the practice relates to business necessity, the complainant may still succeed if they can show that “there were comparable, less discriminatory practices that the employer refused to use”.[14]

The judicial approach has since been reinforced by the Civil Rights Act (1991), which codified the requirements for establishing indirect discrimination in the area of employment, and reiterated the validity of the business necessity test, although without creating a statutory definition of either discrimination or business necessity.[15]

Outside the field of employment discrimination, the application of ‘disparate impact’ (or indirect) discrimination is less clear. While there is still some doubt, “virtually every jurisdiction has held that the ‘disparate impact’ discrimination analysis is appropriate in FHA (Fair Housing Act) cases.[16] Some courts have also, with greater hesitation, found it relevant when looking at discrimination in the area of ‘public accommodation’ (the provision of goods and services in hotels, restaurant and places of entertainment).[17]

In contrast, the courts have found that disparate impact does not apply in many other areas of discrimination law, including the right to make and enforce contracts,[18] and the privately enforceable right to prevent discrimination in federally funded programs.[19] In these cases, it is necessary to show that ‘disparate treatment’, rather than ‘disparate impact’ discrimination has occurred, which requires proof of deliberate intent to discriminate. Likewise, the constitutional ‘Equal Protection Clauses’ have been held to invalidate only those laws which intentionally discriminate against individuals on racial grounds, and not the laws that disproportionately affect a particular racial group.[20] This need to prove intent and a specific discriminatory motive contrasts with the definition of direct discrimination in E.U. and British law, which focus simply on whether an individual has been subject to less favourable treatment.[21] Australian courts have also held that intent or discriminatory motive are not essential to proving direct discrimination.[22]

As in the United States, the statute law in Canada contains no express definition of discrimination, however judicial interpretation in Canada has favoured an approach which recognises both direct and indirect discrimination in all areas where discrimination is prohibited. Discrimination, as the term is used in the Charter of Rights and Freedoms, has been defined by the Supreme Court to mean “a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.” [23]

Since the 1999 cases of Meiorin and Grismer, the Canadian courts have deliberately avoided drawing a distinction between direct and indirect discrimination. [24] Rather than having separate conditions that apply specifically to indirect discrimination, such as the ‘reasonableness’, ‘proportionality’, ‘necessity’ or ‘business necessity’ tests already referred to above, the Canadian courts have developed a unified test to be applied to both direct and indirect discrimination. Thus, under the Canadian Human Rights Act, a policy or practice will be invalid if it disadvantages a protected group, whether directly or indirectly, unless it falls within the statutory defences of bona fide occupational requirement (in the case of employment) or bona fide justification.[25] Moreover, the Canadian Human Rights Act specifies that a practice can only be found to be a bona fide occupational requirement or justification if “accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.”[26]

The significance of this is two-fold; Firstly, it imposes a strict test for indirect discrimination, requiring an employer or service provider to do everything possible short of ‘undue hardship’ to avoid imposing conditions which disadvantage individuals on the grounds of race. It has been suggested by the Canadian Human Rights Commission that “(t)he cost of a proposed accommodation would be considered ‘undue’ if it is so high that it effects the very survival of the organization or business, or it threatens to change its essential nature. The mere fact that some cost, financial or otherwise, will be incurred is insufficient to establish undue hardship.” [27]

The second feature of this approach is that it makes even direct discrimination lawful in cases where it can be shown that there is a bona fide reason for the discrimination, and avoiding that discrimination would cause undue hardship. In this context, it should be noted that the Canadian Human Rights Act covers a range of different grounds of discrimination in addition to race, and that the majority of cases examining whether direct discrimination represents a bona fide occupational requirement or justification have concerned other grounds, in particular disability.[28] It is possible, however, for a directly discriminatory racial prerequisite in employment to constitute a bona fide occupational requirement; one often cited example is where an actor of a particular race is required to portray a specific character in a performance. Exceptions for bona fide occupational requirements also appear in the United Kingdom,[29] in the E.U. directive,[30] and (on the grounds of nationality alone) in the United States,[31] but do not appear to have an equivalent in the Australian legislation.

 


 

[1] Racial Discrimination Act 1975 (Cth) s 9. Also see sections 11-15 for specific instances of direct discrimination in relation to access, housing, provision of goods and services, trade union membership and employment

[2] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective or racial or ethnic origin [2000] OJ L180/22, art 2(2)(a).

[3] Race Relations Act 1976 (UK) c 74 s 1(1)(a).

[4] Racial Discrimination Act 1975 (Cth) s 9(1A).

[5] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective or racial or ethnic origin [2000] OJ L180/22, art 2(2)(b).

[6] Race Relations Act 1976 (UK) c 74 s 1(1A).

[7] Race Relations Act 1976 (U.K.) c 74 s 1(1)(b).

[8] Race Relations Act 1976 (U.K.) c 74 s 1(1B).

[9] Bowen CJ and Gummow J, Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263, as cited in Human Rights and Equal Opportunity Commission, Federal Discrimination Law 2005 (2005).

[10] Australian Medical Council v Wilson (1996) 68 FCR 46 as cited Human Rights and Equal Opportunity Commission Federal Discrimination Law 2005 (2005) at 3.2.3.

 

[11] O’Cinneide C, United Kingdom Country Report on Measures to Combat Discrimination (2007) (unpublished) at 30-31

http://ec.europa.eu/employment_social/fundamental_rights/pdf/legnet/ukrep07_en.pdf (accessed 3/8/07).

But see Race Relations Act 1976 (UK) c 74 s 72A which prohibits clauses of collective agreements and rules made by employers or trade organisations which may be discriminatory in future.

[12] European Commission, ‘The Racial Equality Directive’ (Press Release 27 June 2007) http://europa.eu/rapid/pressReleasesAction.do?reference=

MEMO/07/257&format=HTML&aged=0&language=EN&guiLanguage=en
(accessed 4/10/07).

[13] Griggs v. Duke Power Co., 401 U.S. 424, 431-2 (1971).

[14] DeSario N J, ‘Reconceptualizing Meritocracy: The Decline of Disparate Impact Discrimination Law’ (2003) 38(2) Harvard Civil Rights-Civil Liberties Law Review 479 at 484. But see also New York Transit Authority v Beazer, 40 US 568 (1979), as cited in the same article at 496.

[15] 42 USC § 2000e-2 k.

[16] Stanton J F ‘The Fair Housing Act and Insurance: an Update and the Question of Disability Discrimination’ (2002) 31 Hofstra Law Review 141 at 174.

[17] Arguello v. Conoco, Inc., 207 F.3d 803, 813, n.11 (5th Cir. 2000).

[18] Queen v Dresser Industries, Inc. 456 F Supp 257, (1978, DC Md), affd without op 609 F2d 509 (1979, CA4 Md).

[19] Alexander v. Sandoval, 532 U.S. 275 (2001), citing Alexander v. Choate, 469 U.S. 287, 293 (1985).

[20] Washington v. Davis, 426 U.S. 229 (1976).

[21] For a discussion of cases in support of this principle, see Hepple B, ‘David C. Baum Memorial Lecture: The European Legacy of Brown v. Board of Education’ (2006) 3 University of Illinois Law Review 605 at 614.

[22] Australian Medical Council v Wilson (1996) 68 FCR 46 at 74 as cited in: Human Rights and Equal Opportunity Commission Federal Discrimination Law 2005 (2005) at 3.2.2.

[23] Dickson C.J. and McIntyre, Lamer, Wilson and L'Heureux-Dubé JJ, Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.

[24] British Columbia (Public Service Employee Relations Commission) v. British Columbia Government

and Service Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 (‘Meiorin case’); and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (‘Grismer case’); as discussed in Canadian Human Rights Commission, Bona Fide Occupational Requirements and Bona Fide Justifications Under the Canadian Human Rights Act (2007)

http://www.chrc-ccdp.ca/discrimination/occupational-en.asp (accessed 7/10/07).

[25] British Columbia (Public Service Employee Relations Commission) v. British Columbia Government

and Service Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 (‘Meiorin case’); and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (‘Grismer case’); as discussed in Canadian Human Rights Commission, Bona Fide Occupational Requirements and Bona Fide Justifications Under the Canadian Human Rights Act (2007)

http://www.chrc-ccdp.ca/discrimination/occupational-en.asp (accessed 7/10/07).

[26] Canadian Human Rights Act, RS 1985, c. H-6 s 15(2).

[27] Canadian Human Rights Commission, Duty to Accommodate Fact Sheet (2004)

http://www.chrc-ccdp.ca/preventing_discrimination/duty_obligation-en.asp (accessed 9/8/07).

[28] See for example B.C. (Superintendent of Motor Vehicles) v B.C. (Council of Human Rights) [1999] 3 S.C.R. 868, regarding the denial of services (in this case a driver licence) to those with limited vision.

[29] See Race Relations Act 1976 (UK) c 74 s 4A (race, ethnic and national origin) and s 5 (separate test for colour and nationality).

[30] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective or racial or ethnic origin [2000] OJ L180/22 art 4.

[31] 42 USC § 2000e-2 (e).