discrimination 4

Introduction to Direct Discrimination
- Direct discrimination is a prominent concept within equality legislation and straightforward in its definition.
- It occurs when an individual is treated less favorably due to a protected characteristic, as defined in Section 13 of the Equality Act 2010.

Legal Definition:
A person discriminates against another if because of a protected characteristic, they treat that other less favorably than they would treat others who do not possess that protected characteristic.
Clarification of Terms:
The phrase "because of a protected characteristic" replaces the prior wording of "on the grounds of"—this introduces an element of subjectivity, but motive is generally irrelevant in direct discrimination claims.

The definition of direct discrimination remains largely unchanged since the introduction of previous legislations like the Sex Discrimination Act (1975) and Race Relations Act (1976).

Comparator Requirement:
- To establish a claim, there must be a ‘comparator’—someone treated more favorably who does not share the protected characteristic. The comparison must be made within similar circumstances.
Exception for Age:
- For direct discrimination claims based on age, an employer can justify less favorable treatment if a good reason exists.
Disability-Specific Provisions:
- The law allows for preferential treatment towards individuals with disabilities to ensure equality of opportunity, given their disadvantages in the workplace.
Breastfeeding Considerations:
- Section 13(6A): A person discriminated against for breastfeeding will not need a comparator to establish less favorable treatment.

Discrimination by Association:
- Although not explicitly defined in the legislation, it encompasses scenarios where someone is treated less favorably due to their association with an individual possessing a protected characteristic (e.g., racial discrimination against an employee for standing up to protect a customer of another race).
Discrimination by Perception:
- This occurs when an individual is perceived as having a protected characteristic and is treated less favorably on that basis (e.g., being assumed to be gay or perceived to have a disability).

Coleman v Attridge Law (2008):
- Established that discrimination could be claimed based on a person’s relationship to someone with a disability, thus broadening the scope of direct discrimination to include those who are associated with disabled individuals.
Hypothetical Comparators:
- An alternative means to establish a claim of discrimination by constructing a hypothetical scenario in which the claimant would have been treated more favorably.

Introduction:
- Although Section 14 was included to recognize discrimination based on the intersection of two protected characteristics, it has not been implemented in practice, and claims are still made based on the effect of individual characteristics alone.

Definition and Understanding:
- Indirect discrimination refers to policies or practices that seem neutral but disproportionately impact a certain group based on a protected characteristic.
- It is described as "covert" discrimination, which requires careful examination beyond surface-level neutrality.

Traditional Test (Sex Discrimination Act 1975):
- Required individuals to meet several criteria that often presented considerable barriers.
- Examples include absolute conditions affecting all employees, statistical evidence showing disparity between gender compliance, personal detriment, and justification from the employer.

Amendments through Legislation:
- 2001 Amendments: Introduced a broader definition and eliminated the requirement for statistical evidence.
- 2005 Proportionality Test: Shifted focus towards whether the employer's actions were a proportionate means of achieving a legitimate aim, rather than mere justification.

Current Test:
- Proves discrimination exists if a provision, criterion, or practice puts a group at a disadvantage and adversely affects the individual claimant. The employer's defense must demonstrate that their actions were proportionate and aimed at a legitimate objective.

Overview of Harassment (Section 26):
- Defined as unwanted conduct related to a protected characteristic that creates a hostile environment.
- Key case law (e.g., Pierce v Mayfield School) has shaped interpretations of harassment.
Victimization (Section 27):
- Defined as subjecting an individual to detriment for having engaged in a protected act, which can include making allegations of discrimination.
- No need for a comparator, but there must be a causal link between the protected act and the detriment suffered.

Following this session, students are expected to:
- Understand and critique direct discrimination as defined under the Equality Act 2010.
- Examine various forms of discrimination including indirect discrimination, harassment, and victimization.
- Analyze significant case law and implications of discrimination laws in practical contexts.