Discriminatory Motive and the But for Test: The Proper Approach to Direct Discrimination in Britain and the United States
| Date | 01 September 2007 |
| Published date | 01 September 2007 |
| DOI | 10.1177/135822910700900103 |
International Journal
of
Discrimination and the Law,
2007,
Vol.
9,
pp. 37-56
1358-2291/2007
$10
©
2007
A B Academic Publishers. Printed
in
Great Britain
DISCRIMINATORY
MOTIVE
AND
THE
BUT
FOR
TEST:
THE
PROPER
APPROACH
TO
DIRECT
DISCRIMINATION
IN
BRITAIN
AND
THE
UNITED
STATES
Michael
Connolly
University
of
Westminster, London, UK
ABSTRACT
In recent years, senior judges in Britain have signalled a departure from the long-
established
but
for
test used for direct discrimination cases. They appear to favour
instead that the defendant held a discriminatory motive, or even hostility, for
liability. In the United States, courts have settled upon a requirement for discrimina-
tory motive, but afforded it such a broad interpretation that
is
scarcely distinguish-
able from the
but
for
model, and
is
a convenient,
if
inaccurate label. This paper aims
to demonstrate, using seven kinds
of
direct discrimination case, that neither a
discriminatory motive doctrine, nor the
but
for
test, are suitable models to analyse
direct discrimination claims, and that the proper approach
is
a simple purposive
interpretation
of
the statutory formula provided in both the
UK
and the US.
INTRODUCTION
It
is a
contentious
and
unresolved issue
in
Britain:
should
discrimina-
tory
motive
be a
requirement
for liability for direct discrimination?
On
the
one
hand,
advocates
hold
that
a
person
who
acted
without
a
discriminatory
motive
should
not
be
'stamped'
a discriminator.
However,
that
view
can
defeat
the
broader
societal
purpose
of
the
anti-discrimination
legislation, which is
to
redress
the
discriminatory
effect
of
a
person's
act, regardless
of
his intent.
In
effect, this is a law
of
strict liability,
with
no
defence
of
innocent,
or
even
good,
motive.
British
courts
have
vacillated
on
the
issue,
at
times
requiring
discriminatory
motive,
then
swinging
to
the
other
extreme
and
apparently
settling
on
a strict causative
but
for
test.
More
recently
though,
senior
judges
have
been
dropping
hints
in
favour
of
motive
as
an
element,
and
even contrived
the
outcome
of
some
victimisation (in
the
US,
'retaliation')
cases
to
accord
with
this,
without
expressly saying so, leaving
the
issue
bubbling
under
and
unresolved,
and
the
law
in
a
state
of
uncertainty.
The
US
courts
have long
ago
established
that
discriminatory
motive
is
required for liability for direct discrimination
(or
'disparate
38
treatment'),
but
motive
has
been afforded such a
broad
interpretation
it
is
scarcely distinguishable from
the
British causative but
for
test.
The
aim
of
this
paper
is
to
demonstrate, observing seven variations
of
direct discrimination,
that
neither the but
for
test,
nor
a discriminatory
motive doctrine, are suitable models
to
analyse direct discrimination
claims,
and
that
the
proper
approach
is
a simple purposive interpreta-
tion
of
the
statutory
formula provided in
both
the
UK
and
the US.
DIRECT DISCRIMINATION
In
its simplest form, direct discrimination arises
when
a
defendant
expressly links
the
victim's
protected
characteristic (say, sex,
or
race)
with
his less
favourable
treatment
of
her. A
crude
example
would
be
a
job
advertisement
that
reads
'Librarians
wanted,
no
women
need apply'.
Direct
discrimination
must
be
contrasted
from
indirect discrimi-
nation
(in the US,
'disparate
impact'), where
an
apparently
neutral
practice
has
a
disproportionate
impact
on
the
protected
group.
The
advertisement
could
be
reworded:
'Librarians
wanted,
appli-
cants
must
have
a college degree'. British
courts
will scrutinize this
as indirect discrimination: a
neutral
requirement
having
an
adverse
effect
on
the
protected
group.
As
such,
the
employer
will
be
given
the
opportunity
to
justify
the
requirement. By
contrast,
for
direct
discrimination claims there is
no
general justification defence,
only
specific
narrow
exceptions.
1
The
definitions
of
direct discrimination
in
both
jurisdictions
are
broadly
the
same.
In
the
UK,
the
legislation provides a formula.
For
instance,
the
Sex
Discrimination
Act
1975, section 1(1), provides
that
'[A]
person
discriminates
against
a
woman
if-
(a)
on
the
ground
of
her
sex
he
treats
her
less
favourably
than
he
treats
or
would
treat
a
man
...
'2
In
the
US, Title
VII
of
the
Civil Rights
Act
of
1964 is
more
general,
making
it
unlawful for
an
employer
to
discriminate because
of
race, colour, religion, sex,
or
national
origin.3
The
key
phrases
for
the
present
purpose
are
respectively on the
ground
of
and
because
of
For
liability
under
Title VII,
the
Supreme
Court
established
that
the
employer
must
have
a discriminatory
motive.4
In
Britain,
the
matter
is less certain.
DISCRIMINATORY MOTIVE AND THE
BUT
FOR
TEST
IN
BRITAIN
The
British
statutory
formula
requires
that
the
protected
ground
-
i.e. sex,
gender
reassignment, race, religion, age
or
sexual
orientation
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