The Grounding Requirement for Direct Discrimination

Abstract

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 race or sex). We shall refer to this as the “grounding requirement” for direct discrimination. In this article, we critique the two main approaches that the House of Lords, and then the Supreme Court, have taken towards the grounding requirement, and offer an alternative, which we call the “reasoning-oriented” approach. Pursuant to this approach, the grounding requirement is satisfied if the complainant’s possession of a protected characteristic featured in the alleged discriminator’s reasoning in support of the treatment they accorded to the complainant. We argue that the reasoning-oriented approach overcomes the difficulties with existing approaches. We also distinguish this approach from similar approaches to understanding the grounding requirement. Finally, we address the objection that our preferred approach cannot account for unconscious discrimination.

Keywords: anti-discrimination law, direct discrimination, Equality Act 2010, unconscious discrimination

JEL Classification: K00, K39