Indirect Discrimination 15 Years On

Erica Howard

Abstract


In this article, a short overview of the development of the concept of indirect discrimination and of the reasons why this concept was developed is given. This is followed by an examination of the main elements of indirect discrimination which can be deduced from the definition, particular disadvantage and objective justification. The term ‘provision, criterion or practice’ is briefly described and attention is given to the requirement of a comparator. The analysis of the term ‘particular disadvantage’ will include an examination of the question whether evidence is needed of actual group disadvantage and will conclude that this is not required. The examination of objective justification also discusses that the test for objective justification can be said to come very close to imposing a duty of reasonable accommodation. The differences between direct and indirect discrimination as regards to justification will be addressed as well as the question whether objective justification of direct discrimination should be permitted. It is concluded that such a defence should not be introduced.