Can You Prove it’s Discrimination? A Comparative Review of Direct Discrimination and the Shifting Onus of Proof
Posted: 19 Sep 2018
Date Written: June 1, 2018
The paradigm case of discrimination goes by different names and definitions in different jurisdictions. It is usually conceived of as acting on the basis of prejudice. This apparently simple idea has many complexities that have led to differing formulations of direct discrimination (or its US equivalent, disparate treatment). The variation between these definitions underlines the vagueness of the concept of discrimination, which flows through to making it difficult for individuals to know exactly what must be proved and how to make their proof. The relevance of intention is a central unresolved issue in the paradigm case: many definitions require showing of some sort of mental element. In the US this is referred to as a requirement for intention, whereas in Australia there has been direct judicial and legislative denial that any intention is required to prove direct discrimination. However, some ‘causal connection’ to the prohibited attribute must still be shown.
If some element of intention or connection is necessary to prove the paradigm case, then how this can be proved is vital to the success of any claim. Jurisdictions approach this question of proof in different ways. Many legal systems acknowledge that it can be very difficult to prove any ‘mental element’ because the respondent generally controls the evidence of their own intentions, reasons or motives for their decision. In response, most laws provide a mechanism to shift the onus to the respondent once certain elements are proved, so that the respondent then has to introduce evidence of the mental element or in some systems, disprove it. This shifting onus makes it possible for a claimant to make out their case. American federal law relies of the proof formula in McDonnell-Douglas v Green, and European law (given effect in UK) contains directives that require the onus of proof to be reversed, so that once a prima facie case has been raised, then an inference of discrimination can be made. Australian anti-discrimination law fails to deal with the problem of proof at all, making it very difficult to succeed with a direct discrim claim in the absence of express evidence. In contrast, Australian labour law contains provisions for remedies for discriminatory treatment at work that contain an explicit shifting onus requiring the respondent to disprove the presence of an alleged activating motive.
This paper will begin to comparatively analyse the definition of discrimination, including the paradigm case, its mental elements, and the role of the shifting onus of proof. It will begin by considering the inchoateness of the idea of discrimination, in particular whether motive/intention is relevant or whether the law should look only to effect, and the impact of that lack of clarity on the law and its operation. In doing so it will consider to what extent the literature on implicit bias can be useful in the context of anti-discrimination law.
Keywords: discrimination, direct discrimination, onus of proof, intention, causation
JEL Classification: K31, K39
Suggested Citation: Suggested Citation