Direct Discrimination Without a Comparator? Moving to a Test of Unfavourable Treatment

Federal Law Review, Volume 43, Issue 1, 2015

U of Melbourne Legal Studies Research Paper No. 708

35 Pages Posted: 16 Jul 2015

See all articles by Colin Campbell

Colin Campbell

Monash University - Faculty of Law

Dale Smith

University of Melbourne - Law School

Date Written: July 16, 2015

Abstract

Traditionally, statutory provisions prohibiting direct discrimination have employed a test of less favourable treatment. This test is controversial since it requires the use of a comparator, which is widely regarded as giving rise to a range of serious problems. It is commonly assumed, both by academics and legislators, that reliance on a comparator, and the problems to which such reliance gives rise, can be avoided by employing a test of unfavourable treatment instead of a test of less favourable treatment. In this article, we subject this assumption to critical scrutiny. We acknowledge that, on what is probably the most common understanding of the test of unfavourable treatment, employing that test does avoid the need to rely on a comparator. However, we argue that this understanding renders the test of unfavourable treatment radically over-inclusive. We then consider alternative approaches to understanding the test of unfavourable treatment, and investigate whether these approaches avoid the need to rely on a comparator whilst also avoiding the over-inclusiveness problem. We argue that this depends, ultimately, on what the value is that underlies prohibitions on discrimination.

Keywords: anti-discrimination law, direct discrimination, comparator, unfavourable treatment, value-based approaches

JEL Classification: K00, K39

Suggested Citation

Campbell, Colin and Smith, Dale, Direct Discrimination Without a Comparator? Moving to a Test of Unfavourable Treatment (July 16, 2015). Federal Law Review, Volume 43, Issue 1, 2015, U of Melbourne Legal Studies Research Paper No. 708, Available at SSRN: https://ssrn.com/abstract=2631327

Colin Campbell

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

Dale Smith (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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