Direct Discrimination without a Comparator? Moving to a Test of Unfavourable Treatment
| Author | Colin Campbell,Dale Smith |
| Published date | 01 March 2015 |
| Date | 01 March 2015 |
| DOI | 10.22145/flr.43.1.4 |
| Subject Matter | Article |
DIRECT DISCRIMINATION WITHOUT A COMPARATOR?
MOVING TO A TEST OF UNFAVOURABLE TREATMENT
Colin Campbell
∗
and Dale Smith**
ABSTRACT
Traditionally, statutory provisions pro hibiting direct discrimination have employed a
test of less favourable treatment. This test is controversial since it require s the use of a
comparator, which is widely regarded as giving rise to a range of serious problems. It is
commonly assumed, both by academics and legislators, that reliance on a comparator,
and the problems to which such reliance gives rise, can be avoided by employing a test
of unfavourable treatment instead of a test of less favourable treatment. In this article,
we subject this assumption to critical scrutiny. We acknowledge that, on what is
probably the most common u nderstanding of the test of unfavourable treatment,
employing that test does avoid the need to rely on a comparator. However, we argue
that this understanding renders the test of unfavourable treatment radically over-
inclusive. We then consider alternative approaches to understanding the test of
unfavourable treatment, and investigate whether these approaches avoid the need to
rely on a comparator whilst also avoiding the over-inclusiveness problem. We argue that
this depends, ultimately, on what the value i s that underlies prohibitions on
discrimination.
I INTRODUCTION
Traditionally, statutory provisions prohib iting direct discrimination have employed the
notion of 'less favourable treatment'. This notion is a relative one; a person cannot be
treated less favourably in the abstract, but only by comparison with the treatment
accorded to somebody else. Thus, by e mploying the notion of less favourable treatment,
statutory prohibitions on direct discrimination have traditionally required recourse to
be made to a comparator. That is, the complainant has had to show that they were
treated less favourably, by virtue of their possession of a protected attribute, than
someone who did not possess t he protected attribute, but who was otherwise in
∗ Faculty of Law, Monash University.
** Melbourne Law School, University of Melbourne; Adjunct Senior Research Fellow, Faculty
of Law, Monash University. We are grateful to Matthew Conaglen for very helpful
comments on an earlier draft of this article. We are also very grateful to Sarah Holloway,
Sam Szoke-Burke and David O'Loughlin for their excellent research assistance. Finally, we
would like to thank two anonymous referees for their very helpful comments.
92 Federal Law Review Volume 43
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substantially the same circumstances as the comp lainant, was or would have been
treated.
The use of a test of less favourable treatment has, however, been subject to significant
criticism. The requirement that recourse be made to a comparator raises a number of
difficulties. For example, in many cases, it is difficult to determine what is required to
place a comparator (who does not have the protected attribute) in substantially the same
circumstances as the complainant (who d oes have the protected attribute), whilst
avoiding offensive or otherwise undesirable results.1 Furthermore, even if recourse can
be made to a hypothetical comparator (as is the case in Australia), it may be difficult to
ascertain how the alleged discriminator would have treated that (hypothetica l)
comparator. 2 Perhaps most fundamenta lly, it has been argued that assessing the
complaint of a member of a disadvantaged group, by comparing the treatment they have
received with that which was or would be received by a member of a privileged group,
reinforces the privileged status of that latter group, by treating its members as the nor m
by reference to which the treatment accorded to members of the disadvantaged group
is judged.3
There is, however, an alternative to the test of less favourable treatment — namely, a
test of unfavourable treatment, such that the complainant must instead show that she
1 The classic example concerns discrimination on the basis of the complainant's pregnancy.
Initially, claims of this sort could not be made out, on the basis that men were unable to
become pregnant and so there was no available comparator: see Turley v Allders Department
Stores Ltd [1980] ICR 66, 70 (Bristow J). Later courts found a comparator, but only by
comparing the complainant to a sick male: see, for instance, Webb v EMO Air Cargo (UK) Ltd
[1992] 2 All ER 43, 52 (Glidewell LJ). Interestingly, the UK has sought to eliminate the need
to use a comparator in this context: see Equality Act 2010 (UK) c 15, s 18. By contrast, recent
Australian case law seeks to characterise the comparator in gender neutral terms: see, eg,
Thomson v Orica Australia Pty Ltd (2002) 116 IR 186, 216–7. But there remain indications, in
some cases, that the complainant is being compared to an employee who is sick: see, eg, Ho
v Regulator Australia Pty Ltd [2004] FMCA (12 May 2004) 62, 74 [155] (though cf Howe v Qantas
Airways Ltd (2004) 188 FLR 1, 62).
2 Consider, for example, an industry or workplace where the (non-managerial) employees are
all female. It is often pointed out tha t this makes it difficult to find an actual comparator (see,
eg, Sandra Fredman, Discrimination Law (Clarendon Press, 2nd ed, 2011) 158.) However, a
similar problem may ari se with regard to hypothetical comparators. The very absence of
male workers in the relevant workplace or industry, in anything like a comparable position,
may make it difficult to determine how a hypothetical male comparator would have been
treated.
3 Thus, it is often objected that the use of a comparator results in a female complainant's claim
being assessed by reference to a male standard or norm: see, eg, Catherine A MacKinnon,
Feminism Unmodified: Discourses on Life and Law (Harvard University Press, 1987) 34. A similar
point can be made with reference to, say, disability. It has been argued that there is a diverse
range of abilities among different members of society, and disabled people should not be
regarded as falling outside of that range. Indeed, it has been contended that a person is
disabled only to the extent that society refuses to accommodate their abilities, while
accommodating the abilities of other, differently abled people: see, eg, Fredman, above n 2,
172. Yet assessing the treatment that a disabled person has received by reference to the
treatment accorded to a person who is not disabled treats the non-disabled person as the
norm by reference to which the disabled person is judged.
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