Should Diagonal Discrimination Claims Be Allowed?

Abstract

Sometimes a rule is formally equal, but the people disadvantaged by it are in fact disproportionately of a particular sex, or colour, or religion. They may be able to bring a legal challenge to the rule, on the basis that it discriminates against them indirectly; because part-time workers are disproportionately female, rules disadvantaging part-time workers have been found to be indirect discrimination against women.

However, what about the male part-time worker? Can he bring no challenge? It is the nature of indirect discrimination that there will always be such atypical victims. They are persons who suffer the harm of the rule, but cannot claim that it discriminates against persons of their sex, or colour, or religion. They might be the straight man disadvantaged by a rule that overwhelmingly hinders gay people, or the Christian suffering from a rule that mostly prejudices Muslims. If these 'minority discriminees' cannot sue, while their colleagues of a different sort can, then a new context of discrimination arises.

This raises a number of surprisingly complex practical and theoretical legal problems. In the light of new European Community directives dramatically increasing the categories of prohibited indirect discrimination those problems have become more immediate. This article therefore looks at Community law, and UK and US cases, to answer the question above. It also extrapolates the problem to multiple discrimination situations: what about a rule tending to disadvantage Muslim women, but also harming their few non-Muslim male colleagues?

Keywords: Discrimination, equality, European union, law

JEL Classification: J70, J71