permitted, if it causes unjustiﬁable ‘indirect discrimination’ or ‘disparate impact’.
Here formal equal treatment becomes unlawful where a rule or practice
disproportionately operates to the disadvantage of one of the protected groups,
and the rule or practice cannot be objectively justiﬁed. A third kind of deviation
permits preferential treatment for protected groups in certain circumstances, in
order to redress a prior history of disadvantage. The exact scope of permitted
positive discrimination is deeply controversial, no doubt because it is perceived as
conﬂicting sharply with the equal treatment principle.
These three deviations
reveal that we cannot understand the aim of anti-discrimination laws by reference
to a straightforward equal treatment principle. The question becomes how can we
account for the law in a way that both recognises the force of the equal treatment
principle and acknowledges its deﬁciencies as a complete explanation of the aims
of the law?
Conventional accounts of the aim of anti-discrimination laws try to answer that
question by using another conception of equality, one that furthers a substantive
or distributive goal. Deviations from equal treatment are justiﬁed by reference to
the pursuit of goals such as equality of results, equality of resources, or equality of
opportunity. For example, it is argued that permitting claims for ‘indirect
discrimination’ or ‘disparate impact’ serves the purpose of reducing institutional
barriers to the achievement of a distributive goal such as more equality in results
or fairer equality of opportunity.
Similarly, in European law the permitted scope
for positive discrimination is determined in part by reference to a substantive
conception of equality: ‘With a view to ensuring full equality in practice, the
principle of equal treatment shall not prevent any Member State from maintaining
or adopting speciﬁc measures to prevent or compensate for disadvantages linked
to [sex, race, etc.] y’
Although the precise conception of substantive equality
remains ambiguous in such formulations, it certainly seems possible to justify
deviations from the equal treatment principle by reference to some distributive
conception of equality. The problem for justifying the aims of anti-discrimination
laws becomes rather to restrain or conﬁne the force of a substantive conception of
This problem arises because there is always a tension between the equal
treatment principle and substantive conceptions of equality. Because equal
treatment determines a procedure rather than an outcome, equal treatment can
always be challenged as obstructing the achievement of a particular outcome. This
tension is most obvious with respect to a strong egalitarian version of equality. If
the aim of the legislation is perceived to be strict equality of outcomes, any rule or
practice including equal treatment that prevents the achievement of an egalitarian
Eg EC Directive 2000/78, Art 2.2(6); Civil Rights Act 1964, Title VII, 42 USC s 2000e
7 M. B. Abram, ‘Afﬁrmative Action: Fair Shakers and Social Engineers’ (1986) 99 Harvard Law
Review 1312. This conﬂict was the conceptual framework within which US constitutional law
addressed the issue of reverse discrimination: Regents of University of California vBakke, 438 US
265, 98 S Ct 2733 (1978) (Supreme Ct US).
8 C. McCrudden, ‘Changing Notions of Discrimination’ in S. Guest and A. Milne (eds), Equality
and Discrimination: Essays in Freedom and Justice ARSP Vol 21 (Stuttgart: Franz Steiner, 1985)
86; J. Gardner, ‘Liberals and Unlawful Discrimination’ (1989) 9 OJLS 1. The variety of possible
distributive senses of equality found in the law is explored in S. Fredman, Discrimination Law
(Oxford: Oxford University Press, 2002) Chapter 1
; C. Barnard and B. Hepple, ‘Substantive
Equality’ (2000) 59 CLJ 562.
9 Directive 2000/78/EC of 27 November 2000, OJ L 303, 2.12.2000, 16 establishing a general
framework for equal treatment in employment and occupation, article 7(1); see also on sex
discrimination in particular Treaty Establishing the European Community Article 142(4).
Discrimination, Equality and Social InclusionJanuary 2003]
17rThe Modern Law Review Limited 2003