The Grounding Requirement for Direct Discrimination

The Law Quarterly Review, Vol. 136, (2020), 258-283

U of Melbourne Legal Studies Research Paper No. 937

35 Pages Posted: 3 Jun 2021 Last revised: 7 Jun 2021

See all articles by Colin Campbell

Colin Campbell

Monash University - Faculty of Law

Dale Smith

University of Melbourne - Law School

Date Written: June 2, 2021

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

Suggested Citation

Campbell, Colin and Smith, Dale, The Grounding Requirement for Direct Discrimination (June 2, 2021). The Law Quarterly Review, Vol. 136, (2020), 258-283, U of Melbourne Legal Studies Research Paper No. 937, Available at SSRN: https://ssrn.com/abstract=3859031

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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