Disparate Effects and Objective Justifications in Sex Discrimination Law

AuthorDouglas W. Vick
DOI10.1177/135822910100500102
Date01 March 2001
Published date01 March 2001
International Journal of Discrimination and the Law, 2001, Vol . 5, pp
. 3-38
1358-2291/2001$10
© 2001
A B Academic Publishers
. Printed in Great Britain
DISPARATE EFFECTS AND OBJECTIVE JUSTIFICATIONS
IN SEX DISCRIMINATION LAW
DOUGLAS W
. VICK*
University of Stirling, UK
ABSTRACT
Given the difficulties involved in proving indirect sex discrimination, the practical
importance of the allocation of evidential burdens and the quantum of proof
required to discharge those burdens should not be underestimated . The recent
decisions by the ECJ in Case C-167/97
R v Secretary of State for Employment ex
parse Seymour-Smith [1999]
ECR I-623 and by the House of Lords in
Barry v
Midland Bank plc [1999]
IRLR 581 and
R v Secretary of State for Employment ex
parse Seymour-Smith
(No 2) [2000] 1 All ER 857 erect significant barriers to indir-
ect discrimination claims, especially in cases challenging legislation
. The apparent
retreat from a vigorous application of the indirect discrimination concept may
reveal judicial uneasiness with the substantive view of equality that underlies the
concept, as well as discomfort with the quasi-constitutional implications of over-
riding legislative policy judgments
.
1
. INTRODUCTION
The United Kingdom's adoption of a comprehensive statutory scheme
to combat sex-based employment discrimination, primarily through
the passage of the Sex Discrimination Act 1975 (SDA) and the Equal
Pay Act 1970 (EgPA), coincided with the UK's accession to the
European Community
. Sex equality law has evolved from that time
through a dynamic interplay of legal experimentation by the EU's
Member States on the one hand and the standardising influence of
the European Court of Justice (ECJ) on the other
. Perhaps the United
Kingdom's most important contribution to this process has been the
concept of indirect discrimination
.
It is now well-settled that European law prohibits all forms of
sex-based discrimination, whether direct or indirect
.' The prohibition
of direct discrimination is fairly uncontentious, since at its core it
reflects a widely-accepted formal view of equality
: that like should
be treated as like, and the same rules should apply to all those who
are similarly situated
. The concept of indirect discrimination is more
controversial
. It recognises that rules, even if applied equally, them-
4
selves are sometimes the product of invidious societal prejudices
. It
requires more than just a comparison of individual cases, focusing
instead on the effects of policies and practices on women (or men)
as a class, and looking beyond the surface neutrality of rules to their
deeper implications for sex equality in the workplace
. This substant-
ive approach to questions of sex equality involves the courts in sens-
itive inquiries into traditional social structures and norms
. Many
argue these questions are beyond judicial competence, and charges of
`social engineering' are sometimes directed against courts asking
them
.
In light of this, it is perhaps not surprising that both the ECJ
and the House of Lords have recently retreated from a robust
application of the indirect discrimination concept . In three recent
cases, these courts have addressed two important issues
: how much
is required to make out a prima facie case of indirect discrimination,
and how closely will courts scrutinise the justifications offered for
indirectly discriminatory practices and requirements
. The answers
given provide little solace for the victims of entrenched discriminat-
ory societal attitudes
. The ECJ's judgment in R
v Secretary of State
for Employment ex parte Seymour-Smith
2
makes it extremely difficult
to prove indirect discrimination through statistical evidence . In the
first opportunities presented to the House of Lords after that case to
address the scope and meaning of indirect discrimination
-
in
Barry
v Midland Bank plc
3
and its own reconsideration of the claim raised
in
Seymour-Smith
4
-
a further erosion of judicial commitment to the
concept can be perceived
.
This article first examines the structure of sex discrimination law
in the UK and EU, with particular emphasis given the allocation of
evidential burdens in indirect discrimination law and the nature and
quantum of proof necessary to discharge those burdens
. The article
then analyses the cases mentioned above
. It is submitted that these
decisions could make it significantly harder for successful indirect
discrimination claims to be made
. Finally, the article argues that
these cases may reveal judicial uneasiness with the substantive view
of equality that underlies the indirect discrimination concept, as well
as discomfort with the quasi-constitutional implications of assessing
the validity of legislative policy judgments in the manner often
required in indirect discrimination cases
.
2
. THE FRAMEWORK OF SEX DISCRIMINATION LAW
Article 141 (formerly 119) of the EC Treaty requires Member States
to `ensure that the principle of equal pay for male and female
workers for equal work or work of equal value is applied
.' The
5
Treaty defines `pay' as `any
...
consideration, whether in cash or in
kind, which the worker receives, directly or indirectly, in respect of
his employment from his employer
.
'S
The ECJ has interpreted this
language expansively, holding that Article 141 prohibits discrimina-
tion in connection with non-salary benefits such as sick pay
;
6
statut-
ory and contractual redundancy and severance schemes
;
7
pension
benefits
;
8
access to employer-funded pension plans
;
9
and entitlement
to compensatory remedies for unfair dismissal
.
Article 141 has been
supplemented by several EC directives, the most important of which
are the implementing Equal Pay Directive
ll
and the Equal Treatment
Directive
.
12
If an aspect of an employment relationship somehow falls
outside the broad definition of `pay' used in Article 141 and the
Equal Pay Directive, it is likely covered by the Equal Treatment Dir-
ective, which forbids discrimination in connection with day-to-day
working conditions, access to employment and promotion opportunit-
ies, and dismissal
.
13
Article 141 originally was justified on purely economic grounds,
as a means of eliminating market distortions caused by divergent
anti-discrimination policies and male/female wage differentials in the
various Member States of the European Economic Community
.
14
An
economic rationale, however, does not fully explain the ECJ's evol-
ving case law interpreting the rights Article 141 conveys
; it is now
widely accepted that European anti-discrimination law incorporates
considerations of social as well as economic policy, and in particular
the socio-political value of equality
.
15
But for the most part the ECJ's
jurisprudence has favoured a formal, as opposed to substantive,
understanding of equality ."' Formal equality requires consistency of
treatment
-
that like be treated as like
-
and makes any rights con-
ferred on women by Article 141 dependent on whether comparable
rights are afforded similarly-situated men
.
17
This approach can be
seen most clearly in cases of `direct' discrimination, where a worker
is treated less favourably than someone (whether real or hypothetical)
of the opposite sex, and this less favourable treatment would not
have occurred but for the worker's sex
.
18
These cases demand only
that a job-related condition or requirement be applied to men and
women equally, notwithstanding whether that requirement or criterion
is largely a `male creation'
-
that is, accommodating societal
expectations of men rather than women, and resulting from decades
of male-dominated workplaces
.
A strictly formal view
off
equality, then, relies on individual
comparisons `in an employment market which has been structured by
and
.
. .
for men
.'
19
Substantive equality, in contrast, is less concerned
with whether `male norms' are applied equally to men and women,
and instead `seeks to situate notions of equality in the context of
women's historically inferior status and position of disadvantage
.'
20

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT