Wrongs, Group Disadvantage, and the Legitimacy of Indirect Discrimination Law

Abstract

Is indirect discrimination liability akin to an affirmative action programme or more like the tort of negligence? Is it a redistributive measure or a corrective one? Is it best characterized as ‘public law’ or ‘private law’? Does it seek to protect groups or individuals? In this paper, we will argue that liability for indirect discrimination occupies a middle ground between these supposedly settled legal categories, combining features of both items in each dichotomy. It is this seemingly unstable and somewhat unfamiliar middle position that partially explains the persisting doubts expressed regarding the legitimacy of indirect discrimination liability.

In section I, we will identify the two distinct duties — one general and the other particular — that underpin indirect discrimination. In section II, we will provide a conceptual restatement of British indirect discrimination law and identify the general and particular dimensions of this liability. This section will outline how the particular duty in indirect discrimination diverges from traditional causation-demanding private law liability for the tort of negligence, and how these divergences are justified given social realities and the general/distributive dimension of indirect discrimination liability. Section III will show that despite the indirect discrimination liability being technically strict, it is to some degree avoidable, and at any rate, not unfair. The ambitions of this paper are primarily theoretical — we understand that practitioners often need to eschew conceptual tidiness in order to secure a substantively just outcome in their particular jurisdictional context.

Keywords: discrimination law theory, indirect discrimination, corrective justice, distributive justice, jurisprudence