Discrimination, Equality and Social Inclusion

AuthorHugh Collins
Publication Date01 Jan 2003
DOIhttp://doi.org/10.1111/1468-2230.6601002
Discrimination, Equality and Social Inclusion
Hugh Collins
n
Although laws against discrimination have conventionally been justified and
articulated according to various conceptions of equality, tensions between different
notions of equality undermine the coherence of these explanations. The aim of
social inclusion is proposed as part of an alternative justification for discrimination
laws. As well as exploring the meaning and implications of the policy of social
inclusion for discrimination laws, the extent to which the law already embodies this
idea is assessed with particular reference to the scope of anti-discrimination laws,
proof of discrimination, justification defences, and positive discrimination. It is
concluded that the goal of social inclusion has the potential to provide a vital
ingredient in a more coherent, though not uncritical, account of the aims of anti-
discrimination legislation.
The aim of equality
What is the general aim of anti-discrimination laws? At first sight, legislation in
the European Union and the United States advances a conception of equality as
its general aim. Indeed, anti-discrimination laws have often been dubbed ‘equality
laws’.
1
The central case of prohibited conduct is less favourable treatment of
another person on grounds of (or because of ) their race, sex, or one of the other
protected group classifications.
2
This standard insists upon equal treatment to the
extent that people should be assessed without regard to certain characteristics such
as sex and race that have often been a source of disadvantage in the past. Equal
treatment demands impartiality in the sense of forbidding criteria such as sex or
race from providing grounds for differentiation.
3
Yet the aim of anti-discrimina-
tion laws cannot be reduced to equal treatment.
A closer inspection of the legislation reveals three kinds of deviations from a
simple equal treatment principle. In some cases, different rather than the same
treatment is required. In the case of discrimination against pregnant women, for
instance, the law mandates different treatment of women rather than the same
treatment as men.
4
Similarly, different treatment of disabled persons is required in
many respects, in order to enable them to gain access to work and other
opportunities.
5
In a second type of deviation, equal treatment is itself not
n
Law Department, London School of Economics. Thanks are owed to many who commented on
earlier drafts of this essay, especially Oonagh Reitmann, Richard Nobles, and Nicola Lacey.
1 S. Fredman, ‘Equality: A New Generation?’ (2001) 30 ILJ 145; C. McCrudden, ‘The Effectiveness
of European Equality Law: National Mechanisms for Enforcing Gender Equality Law in the
Light of European Requirements’ (1993) 13 OJLS 320; B. Hepple, M. Coussey and T. Choudhury,
Equality: A New Framework, Report of the Independent Review of the Enforcement of UK Anti-
Discrimination Legislation (Oxford: Hart, 2000).
2 Eg EC Directive 2000/78, Art 2.2(a) Civil Rights Act 1964, Title VII, 42 USC s 2000e-2(a)(1).
3 I. M. Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990)
Chapter 4.
4 Eg EC Directive 92/85, OJL 348, 28.11.92; EC Directive 2002/73, OJL269, 5.10.2002.
5 Americans With Disabilities Act 1990, 42 USC s 1201, especially s 12112(b)(5)(A); EC Directive
2000/78, Art 5; Disability Discrimination Act 1996, especially s 6; the requirement for different
treatment is considered below.
rThe Modern Law Review Limited 2003. Published by Blackwell Publishing Ltd.,16
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permitted, if it causes unjustifiable ‘indirect discrimination’ or ‘disparate impact’.
6
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.
7
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.
8
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
9
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
equality.
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
6 Eg EC Directive 2000/78, Art 2.2(6); Civil Rights Act 1964, Title VII, 42 USC s 2000e–2(a)(2) and
(k).
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

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