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Distinguishing Between Direct and Indirect Discrimination

journal contribution
posted on 2022-09-29, 02:48 authored by Colin CampbellColin Campbell, Dale Smith
This article critiques two commonly discussed ways of understanding the distinction between direct and indirect discrimination. On the first, direct discrimination is intentional, whereas indirect discrimination is unintentional. On the second, direct discrimination applies where the discriminator (D) singles out the complainant (C) for differential treatment on the basis that C possesses a protected characteristic. By contrast, indirect discrimination applies where D acts on a provision or criterion that is neutral on its face (ie makes no reference to a protected characteristic). The article then offers an alternative understanding of the distinction, whereby direct discrimination occurs where D treats C adversely, and regards C's possession of a protected characteristic as a factor in favour of according that treatment. By contrast, indirect discrimination occurs where D instead acts in a way that disproportionately disadvantages members of a group, to which C belongs, distinguished by the members’ possession of a protected characteristic.

History

Journal

MODERN LAW REVIEW

Volume

86

Pagination

301-330

Location

London, Eng.

ISSN

0026-7961

eISSN

1468-2230

Language

eng

Publication classification

C1 Refereed article in a scholarly journal

Issue

2

Publisher

Wiley

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