Michael Connolly

Discriminatory Motive and the But for Test: The Proper Approach to Direct Discrimination in Britain and the United States

In recent years, senior judges in Britain have signalled a departure from the longestablished but for test used for direct discrimination cases. They appear to favour instead that the defendant held a discriminatory motive, or even hostility, for liability. In the United States, courts have settled upon a requirement for discriminatory motive, but afforded it such a broad interpretation that is scarcely distinguishable from the but for model, and is a convenient, if inaccurate label. This paper aims to demonstrate, using seven kinds of direct discrimination case, that neither a discriminatory motive doctrine, nor the but for test, are suitable models to analyse direct discrimination claims, and that the proper approach is a simple purposive interpretation of the statutory formula provided in both the UK and the US.

The Multiple Definitions of Harassment and Direct Discrimination: A ‘Pandora's Attic’? Redfearn v Serco (t/a West Yorkshire Transport Service) [2006] EWCA 659 English v Sanderson [2008] EWCA 1421

It has been received wisdom for some time that some statutory definitions of harassment and discrimination embrace treatment on the ground of a third partys race, or sex, etc, and ‘perceived’ discrimination, that is where the discriminator has acted on a mistaken belief that the victim belonged to a protected group. What was less certain is whether the definitions could embrace a scenario where the treatment was not grounded in anyones particular protected status, or where a worker was fired for his racial views. This article explores the precise meanings attributable to the statutory formulas, and considers the recent Court of Appeal decisions of Redfearn v Serco and English v Sanderson. It concludes that there is an inconsistent and incoherent range of statutory formulas, some narrow, some broad, and some hybrid, and the cases are decided more on policy and purpose than literal interpretation of these formulas.

Equal Treatment, Fault-Based Liability, and Disability-Related Discrimination

This case concerns the meaning disability-related-discrimination. It centred on the housing or ‘premises’ provisions of the Disability Discrimination Act 1995 (DDA 1995), but this House of Lords’ judgment, overruling the long-established Clark v. Novacold, is of great significance to the Acts coverage of employment and the provision of goods, facilities and services. Under the DDA 1995, the functional equivalent of indirect discrimination is disability-related-discrimination, which is defined as less favourable treatment for a reason related to a persons disability, which cannot be justified. The House of Lords undermined two major and established principles of disability-related-discrimination. First, for the challenged treatment to be ‘related’ to the claimants disability, the defendant must have known, or ought to have known, of the disability at the time of the treatment. Second, (Baroness Hale dissenting) when identifying if the treatment was ‘less favourable’ the correct comparator is a person in the same circumstances save for the disability. Hence, where a restaurant has a ‘no dogs’ rule, the correct comparator is a sighted customer with a dog, or where an employer fires a worker who is long-term absent because of his disability, the comparator is a worker without a disability who was long-term absent.

Compulsory Retirement and Age Discrimination: A New Deference to Derogation? Palacios de la Villa v. Cortefiel Servicios SA Case C-411/05, Judgment 16th October 2007

This article examines a recent decision of the ECJ on state derogation from the age discrimination principle contained in the Employment Equality (‘Framework’) Directive 2000/78/EC. The case, Palacios de la Villa v. Cortefiel Servicios SA, originating from Spain, involved a challenge to legislation permitting for compulsory retirement in collective agreements. It also examines a similar British challenge, due in the ECJ sometime in 2009, and comparative case law from the United States, where federal age discrimination law has been in place since 1967. It concludes that the decision in Palacios de la Villa, rejecting the challenge: (1) departed from established ECJ jurisprudence and signalled a new deference to derogation in the field of age discrimination; (2) is out of line with US law; and (3) in any case should not threaten the British challenge. However, it also concludes that lawmakers in Europe and the US generally consider age discrimination to be a lesser wrong than discrimination on other grounds.

Discrimination law and the quota fear in Britain and the United States

On 19th July 2003, following the (EU) Race Directive,1 a new definition of indirect racial discrimination carne into force in the United Kingdom.2 Its principal effect was to annul the Court of Appeals restrictive interpretation of the previous definition.3 However, the new definition may have potential to cover a class of case beyond any contemplated by the draftsman, where there is a racially imbalanced workforce, but with no identifiable cause; or the ‘result-only’ case. If this were so, the fear is that employers would be forced to adopt quotas, rather than face litigation. This issue arose some time ago in the United States, where, provoked by this quota fear, a majority of the Supreme Court rejected such a broad interpretation of the Civil Rights Act 1964.4 This paper will discuss whether the quota fear in result-only cases has substance, and whether these cases should indeed be recognised and challengeable under US and UK legislation.5