The chilling effect and the most ancient form of vengeance: discrimination and victimising third parties

Publication Date01 September 2011
Date01 September 2011
DOI10.1177/1358229111420523
AuthorMichael Connolly
The chilling effect and
the most ancient form
of vengeance:
discrimination and
victimising third parties
Michael Connolly
Abstract
The recent Equality Act 2010 includes a revised definition of ‘victimisation’, which (in the
Act’s most litigated field of employment) prohibits employers from victimising workers
who use the legislation. The underlying mischief should be the deterrent effect upon liti-
gants, or potential litigants (the ‘chilling’ effect). One particularly pernicious deterrent is
the victimisation, not of the complainant, but of a third party, such as the complainant’s
spouse, loved one or friend, ‘the most ancient form of vengeance’. Yet the revised defi-
nition does not address the deterrent effect per se, and specifically excludes third party
victimisationfrom its reach. This paper explores,first, why the deterrent mischief andthe
chilling effect should underpin the victimisation provision, so that it addresses third party
victimisation; second, the potential of existing alternative solutions in domestic law
(including parallels with the criminal contempt of court); and third, the position under EU
law and the UnitedStates’ Civil Rights Act 1964. It concludes that the best existing solution
lies in EU general principles, but for the sake of certainty, a simple amendment to the
existing formula is required, which would solve the problem without any adverse effects.
Keywords
Equality Act 2010, victimisation, third party victimisation; remedies, Civil Rights Act
1964, contempt
University of Surrey, UK
Corresponding author:
Email: M.Connolly@surrey.ac.uk
International Journalof
Discrimination and theLaw
11(3) 123–139
ªThe Author(s) 2011
Reprints and permission:
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DOI: 10.1177/1358229111420523
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Introduction
At the end of the movie Spartacus, the Romans famously threaten to crucify all their cap-
tured slaves unless Spartacus gives himself up. This threat persuaded the hero to concede
defeat and save his comrades. As he begins to stand, Spartacus is saved by the loyalty of
his fellow slaves, each of whom declares: ‘I am Spartacus!’ The point – for the present
purpose – is that Spartacus was moved to give up his life by a threat to others with whom
he had empathy. In this case there was a bond of comradeship. In others, the emotional
exploitation uses spouses or civil partners, family, loved ones, close friends or even work
colleagues. The most commonly litigated area of discrimination law is the field of
employment. Of course, one would not expect to find such dramatic threats in the field
of employment discrimination. But, in principle, the practice exists, as characterised by
Richard A. Posner: ‘To retaliate against a man by hurting a member of his family is an
ancient method of revenge, and is not unknown in the field of labor relations.’
1
In the field on employment, many scenarios involving this ‘third party victimisation’
could arise. Most can be grouped into three classes, as shown here.
A worker issues discrimination proceedings against her employer (the ‘protected act’)
and:
No. 1: Same employer – same workplace. In retaliation, the employer fires the work-
er’s fiance´ (who worked in the same undertaking). Variations on this would be that
the retaliation falls short of dismissal (e.g. rejecting a promotion application, with-
holding an expected pay rise, giving a poor appraisal) or that the victim is the clai-
mant’s spouse or civil partner, relative, loved one, close friend or a work colleague.
No. 2:Same employer – different undertaking. As above, save that the fiance´ worked
for another undertaking owned or managed by the same employer.
No. 3:Different employer. As above, save that the fiance´ worked for an undertaking
owned or managed by a friend or relative of the employer, who fired him on the
say-so of the employer or out of tacit sympathy.
In these scenarios, the employer’s action would deter the claimant and other workers
(the ‘chilling’ effect) from using the discrimination legislation.
The recent Equality Act 2010 includes a revised definition of ‘victimisation’ (see
below), which prohibits employers from victimising workers who use the legislation.
The mischief here should be the deterrent effect upon the complainant and the chilling
effect. Yet the revised definition was not drafted with this mischief in mind, and it spe-
cifically excludes third party victimisation from its reach. The exclusion of this particu-
larly pernicious form of victimisation leaves the statute open to abuse by employers, who
may carefully (or in some cases, instinctively) target the complainant’s spouse or civil
partner, relative, loved one, close friend or work colleague.
This paper, first, argues that the mischief of deterrents and the chilling effect should
inform the primarypurpose of the victimisationprovision, and, in doing so,it should cover
third party victimisation. The argument uses EU case law and legislative history of the
equality directives, the caselaw of United States Civil RightsAct 1964, and by way of ana-
logy, criminal contempt of court. Second, it evaluates the potential of existing alternative
124 International Journal of Discrimination and the Law 11(3)

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