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Direct Discrimination without a Comparator? Moving to a Test of Unfavourable Treatment

journal contribution
posted on 2023-06-22, 05:00 authored by Colin CampbellColin Campbell, Dale Smith
Traditionally, statutory provisions prohibiting direct discrimination have employed a test of less favourable treatment. This test is controversial since it requires the use of a comparator, which is widely regarded as giving rise to a range of serious problems. It is commonly assumed, both by academics and legislators, that reliance on a comparator, and the problems to which such reliance gives rise, can be avoided by employing a test of unfavourable treatment instead of a test of less favourable treatment. In this article, we subject this assumption to critical scrutiny. We acknowledge that, on what is probably the most common understanding of the test of unfavourable treatment, employing that test does avoid the need to rely on a comparator. However, we argue that this understanding renders the test of unfavourable treatment radically over-inclusive. We then consider alternative approaches to understanding the test of unfavourable treatment, and investigate whether these approaches avoid the need to rely on a comparator whilst also avoiding the over-inclusiveness problem. We argue that this depends, ultimately, on what the value is that underlies prohibitions on discrimination.

History

Journal

Federal Law Review

Volume

43

Pagination

91-118

ISSN

0067-205X

eISSN

1444-6928

Language

en

Publication classification

C1.1 Refereed article in a scholarly journal

Issue

1

Publisher

SAGE Publications

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