Unintended discrimination

Date Published: 21.10.2017

Police forces used to have a minimum height requirement. The stipulation made no mention of sex or gender. But it meant that fewer women could qualify to enter the force than men. So was that rule discriminatory?

In a new podcast Wadham Fellow in Law, Tarun Khaitan, discusses the Foundations of Indirect Discrimination Law – the subject of his forthcoming book.

“The best way to explain Indirect Discrimination is through an old fable by Aesop” says Tarun who goes on to recount the story of Mr Fox inviting Mr Stork to dinner and serving milk in a shallow bowl from which Mr Stork could not drink with his long beak. When Mr Stork invites Mr Fox, he serves the milk in a tall pitcher; in both cases offering something in a way that only suits the needs of selected groups.

Indirect discrimination (or disparate impact) concerns the application of the same rule to everyone, even though that rule significantly disadvantages one particular group in society. Ever since its recognition by the Supreme Court of the United States in 1971, liberal democracies around the world have grappled with the puzzle that it can sometimes be unfair and wrong to treat everyone equally.

The 1971 Griggs v Duke Power Co case advertised an unskilled job saying that a high school diploma was essential. This apparently neutral advertisement indirectly discriminated against black people in the area who were unlikely to have high school diplomas.

The podcast for Philosophy 24/7 goes on to discuss intent on the part of the discriminator, damages, compensation and the morality of certain actions.

The law's regulation of private acts that unintentionally (but disproportionately) harm vulnerable groups including women, racial, and LGBTQ minorities, and those with disabilities, has remained extremely controversial, especially in the United States and the United Kingdom.

In original essays in Tarun’s forthcoming book, leading scholars of discrimination law from North America and Europe explore the various facets of the law on indirect discrimination, interrogating its foundations, history, legitimacy, purpose, structure, and relationship with other legal concepts. The collection, edited with Hugh Collins, provides the first international work devoted to this vital area of the law that seeks both to prevent unfair treatment and to transform societies.

Foundations of Indirect Discrimination Law (Hart, Bloomsbury) will be published on 22 March 2018.

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