Justifying Indirect Discrimination in English and American Law: How Stringent Should the Test Be?
| Published date | 01 September 1995 |
| Author | Richard Townshend-Smith |
| Date | 01 September 1995 |
| DOI | 10.1177/135822919500100202 |
International
Journal
of
Discrimination
and
the
Law,
1995,
Vol.
1,
pp.
103-129
1358-2291/95
$10
©
1995
A B Academic Publishers. Printed in Great Britain
JUSTIFYING
INDIRECT
DISCRIMINATION
IN
E]SGLISH
AND
AMERICAN
LAW:
HOW
STRINGENT
SHOULD
THE
TEST
BE?
RICHARD
TOWNSHEND-SMITH
Department
of
Law, University
of
Wales,
Swansea
ABSTRACT
Because British anti-discrimination legislation is significantly based on the Amer-
ican precedent contained in Title VII
of
the Civil Rights Act
1964,
it is instructive
to compare judicial developments
in
the two countries. This article argues, first,
that the standard
of
justification imposed in America in indirect discrimination
cases is less strict than has often been asserted; and, secondly, that there are sound
legal and policy reasons why a standard less than literal necessity is appropriate.
INTRODUCTION
It
is well known that American Civil Rights Law was the pro-
genitor
of
the British law
of
indirect discrimination.1 The United
States Supreme Court decision
in
Griggs v Duke Power Co.2 saw the
judicial creation
of
this doctrine, known in America as adverse
impact, and was the model for the introduction into British law
of
the requirement
of
'justification'.3 Since 1975, the precise burden
on
employers (and other potential defendants) as to what is required to
justify a requirement has rather ebbed and flowed. However, the
combination
of
the European Court decision
in
Bilka-Kaufhaus
GmbH v Weber von Hartz4 and the recent decision
of
the House
of
Lords in Equal Opportunities Commission v Secretary
of
State
for
Employmenf
has meant that the burden on employers has shifted
towards to what might be termed the more 'objective' end
of
the
spectrum. In Bilka it was held that the measures chosen
by
the
employer must 'correspond to a real need on the part
of
the under-
taking, [must be] appropriate with a view to achieving the objectives
pursued, and [must be] necessary to that end' .6 Nevertheless, there
remains a gap in the law, in that the courts have generally not
spelled out in practical terms precisely what is required for objective
justification to be proved. The House
of
Lords proved an honourable
exception in the Equal Opportunities Commission case, where Lord
104
Keith analysed the strength
of
the evidence in some detail before
concluding that objective justification had not been made out.
This article will first examine the underlying policy justifications
for indirect discrimination law, confining the discussion to issues
of
job
access
ana
thus excluding the issue
of
equal pay for work
of
equal
value.
It
will be contended that considerations
of
policy and good sense
advise caution before we impose too stringent a test
of
justification.
The key decisions
of
the United States Supreme Court relating to the
employer's burden
of
proof on justification will then be examined.
It
will be shown that the judges in Griggs used other language arguably
less demanding than that
of
literal necessity. It will also be shown that
subsequent American judicial developments have confirmed that literal
objective justification is not the test. It will further be shown that differ-
ent standards have been utilised by American judges according to the
context. The courts have attached a special significance to three issues:
whether the employer in question had a history
of
discrimination
(including discrimination which was lawful as occurring prior to the
1964 Civil Rights Act), whether the claim concerned adverse impact in
employer-administered selection tests, where particularly high standards
have normally been demanded, and whether the case concerned situ-
ations where public safety was arguably in issue, where lower standards
have routinely been applied. Attention will then shift to the British case-
law, which for this purpose includes decisions
of
the European Court
of
Justice; again it will be shown that, while objective justification has
often been stated as the requirement, as a matter
of
practice something
less than this is likely to be accepted as sufficient. It is the author's
contention that,
if
the burden on employers is to be even potentially
capable
of
fulfilment, something less than literal objective justification
is the appropriate standard.
Both in relation to race claims and gender claims, the operation
of
the law
of
indirect discrimination has proved a sad disappoint-
ment, and it is difficult to argue that the precise burden
of
justifica-
tion placed on the employer is more than a relatively minor reason
for that.
7 Developing the law along the lines proposed would not by
itself transform the law and to that extent might be accused
of
being
no more than a minor tinker. However, the precise weight
of
the
employer's burden goes to the heart
of
both the theoretical and prac-
tical operation
of
the law, and needs to be at the right level for the
law to work as effectively as possible.
THE
OBJECTIVE
OF
INDIRECT
DISCRIMINATION
LAW
The standard socio-economic rationale for a law
on
indirect dis-
crimination (adverse impact) is well-known. Some practices
of
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