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‘One of the biggest problems of discrimination law is deciding whom to protect’.
Pursuant to traditional theories of English contract law, ‘it is up to the parties to decide for themselves the terms of their contract and the task of the court is to give effect to the agreement that the parties have reached.’ This describes the notions of freedom and sanctity of contract, which provide respectively that parties ought to be able to freely chose with whom to enter into agreements, and regarding what terms. Yet where parties are engaged under a contract of employment, service, or a contract to personally carry out work, the law regulates this relationship, prohibiting certain activities and conferring particular obligations upon the ‘employer’ (construed broadly).
This essay considers the law of discrimination, specifically considering how the law does, and ought to select those groups of individuals whom warrant protection. It begins by offering the orthodox view of discrimination law focussed upon addressing inequalities arising from unchosen, uncontrollable and arbitrary features such as gender, age or sexual orientation. It proceeds to offer an alternative approach from the perspective of social exclusion, proposed in response to some of the shortcomings to the equality approach which are highlighted. Furthermore, the essay considers a radically different view which considers that no specific groups of people should receive protection under discrimination law. It is concluded that the social exclusion approach is to be preferred, as it offers protection under the law – a social construct in its own right – to those groups of individuals whose disadvantage arises from the very structures and patterns of distributions within society itself.
Discrimination law is traditionally justified according to the principle of luck egalitarianism – ‘inequalities in the advantages that people enjoy are acceptable if they derive from the choices that people have voluntarily made, but… inequalities deriving from unchosen features of people’s circumstances are unjust.’ McColgan explains how luck egalitarianism note only concerns formal equality of treatment, but further equality of outcome; for example, in 1960s America many attractive jobs were available to anybody with a high school diploma (equality of treatment), however this precluded a great proportion of African American’s who had been unable to attain this qualification (inequality of outcome). Thus a focus on both aspects of equality recognises the ‘reality of unequal starting points and differential needs’, and the deficiency in pure equality of treatment in addressing this.
However Anderson argues that luck egalitarianism primarily regards the distribution of resources, missing many of the ‘broader agendas of actual egalitarian political movements’ such as the freedom of people to appear out in public without fear of physical or verbal attack, or the right to marry and enjoy the associated benefits. Moreover, the focus on people’s choices as against luck to determine acceptable and unacceptable inequalities fails to give due regard to underlying systemic patterns of distribution of resources, rights and talents. Such patterns in turn both comprise how ‘lucky’ one’s distribution is in the first place, and indeed at least some of the choices individuals proceed to make. McColgan submits that this demonstrates ‘the slipperiness of the concept of equality when it is considered abstracted from the social context in which inequalities occur,’ whilst Young adds that discrimination law should respond by regarding patterns of distribution amongst different groups which, whilst not necessarily prima facie discriminatory, nevertheless indicate injustice brought about by social structures which restrict the opportunities, capacities and rights of some, whilst not others.
Collins suggests an alternative theoretical approach to discrimination law to the traditional underlying principle of equality, suggesting that the development of indirect discrimination points towards a social problem that consisting of ‘structural or systemic disadvantage.’ He argues that the principle of social inclusion provides a stronger foundation for determining which characteristics warrant protection under discrimination law, offering that ‘the question is whether the group is one that in practice has been disproportionately socially excluded compared to the population as a whole.’ Applying this criterion, he offers a number of examples of how it might afford protection to classes of individuals who may lack the same under the equality justification, or otherwise fall within exceptions to the prohibition on discrimination. For example, single parents would become prime candidates for a category of people who are often excluded from both material and non-material benefits due to the cost and (in)adequacy of childcare, but do not receive specific protection from discrimination. Similarly, the prohibition on age discrimination provides limited exceptions with regards to retirement, whilst offering little formal protection to often disadvantaged young workers; under the social inclusion principle, Collins suggests workers under 22 and over 55 may receive specific protection.
Collins further notes how discrimination law typically protects a group and its ‘symmetrical opposite’, for example women and men respectively. However the same does not apply to the characteristics of disability, married people or individuals undergoing gender reassignment, whose ‘opposite’ do not receive the same protection, reflecting the social exclusion approach within the existing law. It is suggested that the broader application of this approach may have an overall positively discriminatory effect; for example men as a class would likely not receive protection, as this category arguably suffers from little discrimination or social exclusion in comparison to most others. Thus the law in this example would presumably support positive discrimination towards women, at least until such a time as the genders enjoyed comparable treatment generally.
The case of Stephen English v Thomas Sanderson Ltd. demonstrates both the application of discrimination law to a very unique set of facts, and further indicates the possible future direction of English discrimination law under the influence of EU law, albeit with the reservation of the UK’s pending withdrawal from the Union. The claimant was teased at work over the course of a number of years with homophobic slurs after colleagues discovered that he had attended boarding school as a child and grew up in Brighton. He was subjected to teasing, innuendo and the use of insults such as ‘faggot’ to such a degree that he resigned and subsequently claimed for harassment. Uniquely however, it was accepted by all parties that the Claimant was neither homosexual, nor did his colleagues in fact perceive, believe or assume him to be so; the court had to determine inter alia whether this precluded a claim for harassment on the grounds of sexual orientation under the Employment Equality (Sexual Orientation) Regulations 2003.
Laws LJ dissented, expressing that such an extension of discrimination where the victim neither possesses the protected characteristic and the perpetrator accepts as much would open ‘a Pandora’s attic of unpredictable prohibitions.’ In the majority, however, Sedley LJ considered that if it would be discrimination to subject somebody to such treatment who was genuinely but incorrectly believed to be gay, ‘the distance from there to tormenting a man who is being treated as if he were gay when he is not is barely perceptible.’ Collins LJ highlighted the absurdity of requiring a victim of harassment on grounds of sexual orientation to prove his orientation to the court before establishing such a claim, just as one subjected to racial abuse would not be expected to demonstrate the heredity.
A key question was whether the domestic regulations, reading ‘on grounds of’, ought to be interpreted in accordance with the broader phrasing of the underlying EU directive, reading ‘conduct related to’. As Eastwood explains, the majority in the Court of Appeal preferred an interpretation in line with the intentions of the EU equal treatment framework directive and ‘with a view to putting into effect… the principle of equal treatment.’ Moreover, the decision in English demonstrates ‘the expansion of the coverage and protection provided by European legislation.’ As she explains, this expansion is to be particularly welcomed considering the continued prevalence of workplace bullying in the UK, and continues the trend of providing ever greater protection from discrimination.
There is a not inconsiderable body of commentary which, contrary to promoting the greater expansion of protected categories under discrimination law, questions the morality and efficacy of providing any such protection at all. Portillo and Block propose the abrogation of discrimination law, providing three substantive reasons. Firstly, they submit that the law ought to be restricted to protecting those Lockean ‘natural rights’ such as a rights to life, liberty and property, suggesting in contrast that ‘anti-discrimination policies in the labor market are an example of laws that impose the subjective morality of some people onto the general populace.’ However, it is difficult to see how this position is anything other than the authors’ own subjective morality, advocating for a broadly libertarian and non-interventionist position.
Secondly, they suggest that discrimination laws undermine the freedom of association between parties and their right to engage under their own preferred terms; this argument clearly harks to the principles of freedom and sanctity of contract expressed in the introduction to this essay. Finally, Portillo and Block believe that in a free market economy ‘discrimination on the basis of anything other than productivity… is an unsustainable practice for employers’, suggesting that over time the market would correct for discriminatory practices. They offer the example comparing a hypothetical environment where white people are paid $10 per hour and black people paid $7, suggesting that firms would increasingly take on the cheaper labour over time in order to increase profits and undercut competitors. However this submission bears the same characteristics (and therefore criticisms) of luck egalitarianism, placing an over reliance upon the distribution of resources and failing to account for societal structures which govern choice and opportunity. Moreover, the self-correcting theory simply fails to play out in history; prior to the development of discrimination legislation in the 1970s, there is little to suggest that the market corrected for differences in treatment of women, non-Caucasians or homosexuals, to offer three examples.
This essay concludes by offering general support for the social exclusion approach to selecting those categories of individuals whom ought to receive legal protection from discrimination law. The essay began by setting out the traditional equality approach, highlighting some of the key shortcomings. It proceeded to consider the alternative social exclusion approach, suggesting how this offers broader protection to disadvantaged groups, and further more demonstrating the rise to prominence of this approach from the EU and English. Finally, it considered the radically alternative view that nobody should be protected from discrimination; however it is submitted that this position is justified by circular argumentation, and finds little historical evidence to support the conclusions drawn. It is therefore considered that those individuals who are typically disadvantaged by social exclusion should receive corresponding protection from society under discrimination law.
- Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation  Official Journal of the European Union L303/16, Art. 2(3)
- The Equality Act 2010
- The Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661)
1. Stephen English v Thomas Sanderson Ltd.  EWCA Civ 1421
- Anderson E, ‘What is the Point of Equality’ (1999) 109 Ethics 287
- Andrea Adams Trust, Factsheet on Workplace Bullying [online] <http://www.thecareercoach.co.uk/bullying%20at%20work.pdf> accessed 7th March 2017
- Collins H, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 Modern Law Review 16
- Eastwood R, ‘Harassment and Protected Characteristics’ (2009) 38(2) Industrial Law Journal 222
- McColgan A, Discrimination, Equality and the Law (Hart Publishing 2014)
- McKendrick E, Contract Law: Text, Cases, and Materials (6th ed. Oxford University Press 2014)
- Portillo J & Block W, ‘Anti-Discrimination Laws: Undermining Our Rights’ (2012) 109 Journal of Business Ethics 209
- Scheffler S, ‘What is Egalitarianism?’ (2003) 31(1) Philosophy & Public Affairs 5
- Young M, ‘Equality of Whom? Social Groups and Judgments of Injustice’ (2001) 9 Journal of Political Philosophy 1
 Ewan McKendrick, Contract Law: Text, Cases, and Materials (6th ed. Oxford University Press 2014), 13
 The Equality Act 2010, s. 83
 Samuel Scheffler, ‘What is Egalitarianism?’ (2003) 31(1) Philosophy & Public Affairs 5
 Aileen McColgan, Discrimination, Equality and the Law (Hart Publishing 2014), 16
 Elizabeth Anderson, ‘What is the Point of Equality’ (1999) 109 Ethics 287, 288
 Marion Young, ‘Equality of Whom? Social Groups and Judgments of Injustice’ (2001) 9 Journal of Political Philosophy 1, 8
 McColgan (2014), 19
 Young (2001), 16
 Hugh Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 Modern Law Review 16, 26
 Ibid., 27
 Ibid., 28
 Ibid., 28
 Stephen English v Thomas Sanderson Ltd.  EWCA Civ 1421
 The Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661), Reg. 5
 English, 
 Ibid., 
 Ibid., 
 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation  Official Journal of the European Union L303/16, Art. 2(3)
 Ibid., Art. 1
 Rebecca Eastwood, ‘Harassment and Protected Characteristics’ (2009) 38(2) Industrial Law Journal 222
 Ibid., 227
 Andrea Adams Trust, Factsheet on Workplace Bullying [online] <http://www.thecareercoach.co.uk/bullying%20at%20work.pdf> accessed 7th March 2017
 Javier Portillo & Walter Block, ‘Anti-Discrimination Laws: Undermining Our Rights’ (2012) 109 Journal of Business Ethics 209
 Ibid., 211
 Ibid., 214
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