The Grounding Requirement for Direct Discrimination
AuthorCampbell, C; Smith, D
Source TitleThe Law Quarterly Review
PublisherSweet and Maxwell
University of Melbourne Author/sSmith, Dale
AffiliationMelbourne Law School
Document TypeJournal Article
CitationsCampbell, C. & Smith, D. (2020). The Grounding Requirement for Direct Discrimination. The Law Quarterly Review, 136, pp.258-283
Access StatusThis item is embargoed and will be available on 2021-05-01
In order for an alleged discriminator to be found liable for direct discrimination in the United Kingdom under the Equality Act 2010, the treatment they accorded the complainant must have been “because of” the complainant’s possession of a protected characteristic (such as their race or sex). We shall refer to this as the “grounding requirement” for direct discrimination. Over the last 30 years, the House of Lords and the Supreme Court have grappled with how best to understand the grounding requirement. Initially, the dominant approach was to understand the grounding requirement as laying down a test of “but for” causation. On this approach, we ask: would the alleged discriminator have accorded the treatment to the complainant but for the complainant’s possession of the protected characteristic? More recently, there has been a shift by some members of the Supreme Court to a different approach. Pursuant to this approach, one asks whether the test or criterion used by the alleged discriminator, in deciding how to treat the complainant, makes reference to the complainant’s possession of a protected characteristic. We shall call this the “criterial approach”. Nonetheless, the but-for test has not been entirely abandoned. Our aim in this article is to criticise both of the approaches utilised by the Supreme Court – ie the but for approach and the criterial approach – and then to suggest a better way of understanding the grounding requirement. In section 2 we first present the but-for test in more detail. We then consider the main objection that has been offered to that test, namely that it cannot adequately resolve cases where there are multiple sufficient causes of the alleged discriminator’s treatment of the complainant. We suggest that it may be possible to modify the but for test so as to meet this objection. However, we will argue that there are other respects in which the but for test is unsatisfactory. In section 3 we consider the criterial approach. This approach has been less discussed in the academic literature. We argue that there will often be no principled way in which to identify a particular criterion as “the” test used by the alleged discriminator. For this reason, as well as others, we contend that the criterial approach is unworkable. In section 4 of the article we present our preferred way of understanding the grounding requirement, which we shall call the “reasoning-oriented” approach. Pursuant to this approach, one should not seek to identify a single criterion on which the alleged discriminator acted. Instead, the grounding requirement is satisfied if the complainant’s possession of a protected attribute featured in any way in the alleged discriminator’s reasoning in support of the treatment they accorded to the complainant. We will argue that this reasoning-oriented approach overcomes the difficulties with the but for and criterial approaches. We will also distinguish this approach from other similar approaches to understanding the grounding requirement. In section 5, we address the objection that our preferred approach is under-inclusive.
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