If an employer has a policy or practice of never promoting black or female or Muslim employees, it doesn’t require much legal theory to recognise this as direct racial or sexual or religious discrimination. Nor does it require a great deal of sophistication to recognise that an employer who makes promotion dependent on a test – literacy perhaps – which is applied to all candidates but which a substantially higher proportion of native-born than immigrant employees can pass is indirectly discriminating against the latter. The critical legal difference between the two is that direct discrimination, once established, cannot in general be justified – though there are today two striking instances, age discrimination and disability discrimination, in which even direct discrimination may be justified. Indirect discrimination, by contrast, may always have a legitimate basis that outweighs its damaging effect. Industrial safety, for instance, or administrative competence may require an ascertainable level of literacy whatever its differential impact. Civil engineering will require certified training regardless of the fact that proportionately few women have this qualification.
The US Civil Rights Act of 1964, without formally recognising this distinction, forbade discrimination ‘because of’ a person’s race or sex. In 1971, in one of the US Supreme Court’s moments of greatness, an energy company which was methodically denying black workers employment or promotion by subjecting candidates to an unnecessary written test was held to have contravened the ban on race discrimination. In a celebrated passage, Chief Justice Burger likened indirect discrimination to Aesop’s fable of the fox and the stork, each of whom offered the other refreshment in a vessel from which it could not drink – a dish for the stork, a vase for the fox. But as Sandra Fredman points out in her contribution to Foundations of Indirect Discrimination Law (edited by Hugh Collins and Tarunabh Khaitan, Hart, £65), the US courts, employing the ‘because of’ formula, have always demanded proof of discriminatory intent, something easily denied and not always easily proved. UK law, though it builds (like EU law) on the American concept, has gone beyond intent and places an onus on providers of employment, services and the like to think ahead about the possible differential effects of their policies and practices, intended or not.
This can verge on the unknowable. A surprising group of cases which reached the UK Supreme Court in 2017 concerned a core skills assessment (CSA) test that Home Office staff were required to sit as a gateway to promotion and in which white candidates and candidates aged under 35 did more than twice as well as BME staff and those aged 35-plus. Nobody had any idea why; but the Supreme Court, setting aside the lower courts’ insistence on proof of the mechanism of discrimination, held that the law was being broken simply by virtue of the outcomes. Equality legislation, by requiring an outcome-oriented approach, deliberately puts certain explanatory postulates or assumptions – about age-related or race-related abilities, for instance – out of reach. Meanwhile, the justifiability of the CSA test, given its disparate impact, has been sent back for evaluation by a tribunal: no easy task, you might think, when nobody can explain the disparity.
Belinda Price was 35 when she decided her children were old enough for her to return to paid work. She applied to the civil service, where she had worked briefly as a teenager, and was told that no new entrants over the age of 28 were admitted. This was in 1975, the year the Sex Discrimination Act was passed, and the National Council for Civil Liberties took up the case. The act defined indirect discrimination as the detrimental application of any requirement or condition which could not be objectively justified and ‘which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it’. ‘Can comply’, taken literally, is of course a high hurdle. At the newly established Employment Appeal Tribunal, the government’s counsel, Michael Howard, later home secretary, argued that, had she been prepared to make the necessary sacrifices or arrangements, any woman in Price’s situation could have returned to the labour market in her twenties and thereby met the age requirement.
It was well known that the minister piloting the act had been asked in debate about the possibility of this rigid interpretation and had assured Parliament that ‘can’ was intended to be applied realistically and not literally. In those years lawyers were forbidden to refer to Hansard in support of their arguments (they still are in all but the most intractable cases). But the union representing entry grade civil servants had sent along its head of research, who, when asked if he wanted to add anything to the arguments, produced a copy of Hansard. Howard shot to his feet: ‘You can’t look at that.’ ‘I know we can’t,’ the president of the tribunal said, ‘but I think we’re going to.’
You will not find any mention in the tribunal’s judgment of what had been said in Parliament, or therefore of the attempt to renege on it in court, but the tribunal handed down a landmark decision:
In one sense it can be said that any female applicant can comply with the condition. She is not obliged to marry, or to have children, or to mind children; she may find somebody to look after them, and as a last resort she may put them into care … Such a construction seems to us to be wholly out of sympathy with the spirit and intent of the Act … [Statistical evidence] demonstrates clearly that the economic activity of women with at least one A-level falls off markedly about the age of 22, reaching a bottom at about the age of 33 when it climbs gradually to a plateau at about 45.
It followed that if the civil service could not justify the age bar as reasonable and proportionate given its impact on women, the state was guilty of indirect discrimination.
A decade later Mr and Mrs James, both aged 61, went to a leisure centre in Hampshire for a swim and found that, while Mrs James could get in free, Mr James had to pay. Free admission was only for people of pensionable age, and eligibility for the state pension was set by law at 60 for women and 65 for men. Mr James’s sex discrimination claim reached the House of Lords, who were persuaded to hold, by three to two, that this apparently obvious case of indirect discrimination – applying an age criterion which, because it impacted far more heavily on men than on women, would be unlawful unless it could be objectively justified – was a case of direct discrimination to which justification was irrelevant. They did this by adopting a ‘but for’ test: but for his sex Mr James would have got in free; but for her sex Mrs James would have had to pay. In other words, as Nicholas Bamforth’s essay in Foundations of Indirect Discrimination Law points out, pensionable age, which had been adopted by the council as an indicator of hardship, was treated by the judges as a proxy or surrogate for gender.
Subsequent court decisions have had to follow suit. While the pioneering QC Anthony Lester, provided for Mr James by the Equal Opportunities Commission, has always insisted that the finding of direct discrimination was the right one in principle, critics point out that it was only if the undoubted discrimination was recognised as indirect that the borough council would be permitted to justify it on grounds of relative economic hardship. Since that time, EU law has permitted direct age discrimination, for example in relation to enforced retirement, and UK law has accepted direct disability discrimination, provided in each case it can be objectively justified as a proportionate means to a legitimate end.
Five years before the Sex Discrimination Act was passed, the Equal Pay Act became law, with a five-year delay on its entry into effect, so that both acts came into force at the end of 1975. The shared purpose was to ban sex discrimination in both contractual and non-contractual relationships. But the Equal Pay Act on the face of it makes no allowance for group impact or proportionate hardship: it simply requires an individual woman’s pay to be compared with the pay of a man who does ‘like work’. It is the courts that have assimilated the two concepts by requiring an employer who runs the statutory defence that the pay differential ‘is genuinely due to a material difference’ other than difference of sex to show that the difference is not itself directly or latently discriminatory. It is consequently in the field of equal pay that some of the most significant judicial decisions on indirect discrimination are to be found (see Equal Pay: Law and Practice by Daphne Romney, Oxford, £110).
In particular, cases under both statutes have had to develop the concept of the relevant pool from which comparisons can be drawn. In Belinda Price’s case, for example, to assess the impact of the civil service age bar on the entire adult female population would have been irrelevantly diffuse, while to limit it to actual female candidates would have stifled meaningful comparison. Hence the employment appeal tribunal’s use of a pool limited to women with the required academic qualifications, but including those both above and below the age bar. But there’s no universal formula, despite optimistic expectations that one would emerge, and the courts have finally left it to the employment tribunals to find a pool which, depending on the specific issue, makes practical sense.
All of this is before we get to religious discrimination, which is forbidden in the UK in pretty well every public service except education. The Jewish Free School, entitled, as a fully subscribed state-supported faith school, to admit only Jewish pupils, refused admission to a boy whose mother, a convert from Catholicism to Judaism, did not meet the Orthodox rabbinical criteria for recognition as a Jew. The Supreme Court held by a majority that this was direct race discrimination, drawing a pointed distinction between the motive – without doubt religious – and the reason or ground for the decision, namely that in the view of the school the boy lacked Jewish ethnicity. The school, said the president of the court, ‘discriminates in its admission requirements on the sole basis of genetic descent by the maternal line from a woman who is Jewish … I can see no escape from the conclusion that this is direct racial discrimination.’
Since the case has caused continued controversy, it is interesting to posit an equal and opposite scenario. Suppose the same boy’s parents apply to a Church of England or a Catholic school. The school has no problem with the mother’s conversion but refuses to admit the boy on the ground that a Jewish child cannot be expected to conform to the school’s Christian ethos. Would this – should this – be sufficient to answer a charge of direct discrimination on the ground of the boy’s ethnicity? Suppose, next, that the child’s family are not Jews but Mormons, and the same reason is given. Is the discrimination now religious and therefore presumptively lawful?
For some reason it’s in the bespoke cake business that the issue of competing rights has reached prominence. The Christian bakers in Belfast who refused to put ‘Support gay marriage’ on a gay couple’s wedding cake went recently to the Supreme Court and won the argument (which they had twice comprehensively lost in the lower courts) that their refusal, even if it involved discrimination on political grounds, was a protected exercise of free speech – in this instance, the right not to say something. This right, as it happened, had been exercised not long before in South Carolina, where a bakery was asked to put on a student’s graduation cake, below a congratulatory message, the words ‘Magna cum Laude’. Readers are invited to guess which word the bakery refused to ice.