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Indirect discrimination by association: a regressive step?

By Dee Masters and Siân McKinley

Overview

Since C-303/06 Coleman v Attridge Law, a person may bring a claim for direct discrimination if they are treated less favourably because they are associated with a protected characteristic, such as disability or race, even if they do not share that protected characteristic.

The facts of Coleman provide a classic example of permissible associative direct discrimination in that Ms Coleman was subjected to less favourable treatment because of her disabled son, for whom she was the primary carer, and that role directly and negatively impacted on her employment relationship.

In March 2015, AG Kokott delivered her Opinion in C-83/14 CHEZ Razpredelenie Bulgaria AD, before the ECJ handed down its Judgment.  She has radically pushed the concept of associative discrimination beyond the archetypal situation in Coleman by indicating that:

•  It can arise in claims of indirect discrimination; and

• There is an “association” where any measure is discriminatory and has a “wholesale and collective character” which is much broader than Coleman.

Whilst CHEZ concerned the provision of goods and services, there is plainly a compelling argument that the same principles would be applicable to discrimination within the employment field which potentially causes headaches for employers.

Our view is that AG Kokott’s Opinion is open to criticism since it is inconsistent with the Race Directive, amounts to an unprincipled extension to European law and may undermine rather than promote the rights of disadvantaged groups.

 

Facts

CHEZ supplies electricity.  In predominantly Roma areas, electricity meters are placed 6m off the ground whereas meters are placed at 1.7m in areas which are not predominantly Roma.  This has a disproportionate negative impact on the Roma community.  The reason cited for this practice is to the prevent tampering with electricity meters and illegal electricity extraction. 

Ms Nikolova was not Roma.  But, she ran a business within a predominantly Roma area.  She argued that the height of the electricity meters placed her at a substantial disadvantage because she was not able to see the meter to get readings and as a result all of her bills were overestimated.  Since she was “associated” with the Roma community because she was also affected by CHEZ’s policy on the height of electricity meters, she argued that she was the victim of indirect race discrimination by association.

 

Analysis

AG Kokott concluded that Ms Nikolova was not precluded from arguing that she had been the victim of discrimination by association under the Race Directive (2000/43) since:

• The Race Directive does not restrict the principle of equal treatment to persons who suffer discrimination based on their own racial or ethnic origin; and

• The concept of “association” is not limited to close personal relationships as in Coleman but should apply where any measure is discriminatory and has a “wholesale and collective character”.

We consider that there are four flaws in her analysis and conclusions.

 

(i)              Inconsistency with the Race Directive

AG Kokott simply sidesteps the express language of Article 2 of the Race Directive which states that indirect discrimination requires the claimant to possess the relevant racial or ethnic characteristic, whereas direct discrimination does not.  Specifically, the Race Directive provides that:

1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.

2. For the purposes of paragraph 1:

(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

(Emphasis added)

 

AG Kokott does not provide any explanation as to the way in which the Race Directive can be interpreted so as to be consistent with her analysis or, alternatively, why it should be interpreted differently to its literal meaning.

In this regard, Hainsworth v Ministry of Defence [2014] is instructive.  There, the Court of Appeal was asked to consider whether Article 5 of the Equal Treatment Directive (2000/78/EC) could be interpreted so as to give rise to a duty upon an employer to make reasonable adjustments for the disabled daughter of an employee.  Article 5 reads as follows:

In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in or advance in employment, or to undergo training unless such measures would impose a disproportionate burden on the employer

 

It is complemented by the following recitals:

16. The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability.

17. This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities ...

20. Appropriate measures should be provided, ie effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.

27. In its Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the Community, the council established a guideline framework setting out examples of positive action to promote the employment and training of disabled people, and in its Resolution of 17 June 1999 on equal employment opportunities for people with disabilities, affirmed the importance of giving specific attention inter alia to recruitment, retention, training and lifelong learning with regard to disabled persons.

 

The Court of Appeal concluded that the literal language of the Equal Treatment Directive expressly focused on accommodating the employee only and as such there was no scope for a duty to make reasonable adjustments by association.  This conclusion is almost certainly correct.  In our view, AG Kokott should have adopted a similarly strict interpretation of the Race Directive.

 

(ii)             No principled reason for extension in the law

There are powerful reasons for prohibiting direct discrimination by association. In Coleman, AG Poiares Maduro eloquently explained that the need to prohibit direct associative discrimination arose because of the negative impact on the individual who did belong to the protected group.  He explained that:

At its bare minimum, human dignity entails the recognition of the equal worth of every individual ...

The aim of Article 13 EC and of the Directive is to protect the dignity and autonomy of persons belonging to those suspect classifications. The most obvious way in which such a person's dignity and autonomy may be affected is when one is directly targeted because one has a suspect characteristic …

Yet, directly targeting a person who has a particular characteristic is not the only way of discriminating against him or her; there are also other, more subtle and less obvious ways of doing so. One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group. A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation, as they, too, affect the persons belonging to suspect classifications. 

Indeed, the dignity of the person with a suspect characteristic is affected as much by being directly discriminated against as it is by seeing someone else suffer discrimination merely by virtue of being associated with him. In this way, the person who is the immediate victim of discrimination not only suffers a wrong himself, but also becomes the means through which the dignity of the person belonging to a suspect classification is undermined.

Furthermore, this subtler form of discrimination undermines the ability of persons who have a suspect characteristic to exercise their autonomy. For instance, the autonomy of members of a religious group may be affected (for example, as to whom to marry or where to live) if they know that the person they will marry is likely to suffer discrimination because of the religious affiliation of his spouse. The same can happen, albeit to a lesser extent, with individuals who are disabled. People belonging to certain groups are often more vulnerable than the average person, so they have come to rely on individuals with whom they are closely associated for help in their effort to lead a life according to the fundamental choices they have made. When the discriminator deprives an individual of valuable options in areas which are of fundamental importance to our lives because that individual is associated with a person having a suspect characteristic then it also deprives that person of valuable options and prevents him from exercising his autonomy. Put differently, the person who belongs to the suspect classification is excluded from a range of possibilities that would otherwise have been open to him.”

 

This type of analysis simply does not apply to indirect discrimination claims if the notion of “association” is as broad as suggested by AG Kokott.  In CHEZ, there is no additional advantage or protection to the Roma community simply because Ms Nikolova could bring a claim.  Similarly, the Roma community is not further undermined simply because Ms Nikolova shares their burden. 

 

We do accept that there will be situations where a prohibition on indirect associative discrimination could promote the rights of protected groups and accordingly there is a case for expanding the scope of the Equality Act 2010 but this is only where the Coleman notion of “association” is deployed. 

For example, a coach company has a fixed policy that seats can be reserved on a coach but only if each of the passengers pay a premium.  This neutral practice places disabled people who require support and their families/carers at a disadvantage and could make the flights prohibitively expensive.  In such a scenario there is both prima facie indirect disability discrimination against the disabled passenger and prima facie indirect discrimination by association against the family members.  This indirect discrimination by association has a negative effect on the disabled man since he cannot travel; his family is compelled to travel without him or face a financial disadvantage.

 

The point of distinction between this example and CHEZ is the nature of the association.  By using a stringent definition of “association” as set out in Coleman, the concept of indirect discrimination by association is given meaning and purpose.  The broader definition of association in CHEZ undermines it. Indeed, on AG Kokott’s logic, anyone on the flight who wanted to sit with a family member or friend would have a claim which is simply nonsensical as explained further below.

 

AG Kokott did examine briefly where there was any justification for extending the concept of indirect discrimination so as to include associative discrimination of such a broad nature.  She concluded that to do so would be “fair” because there was no difference between indirect discrimination by association and direct association.  She reached that conclusion on the basis of the following hypothetical scenarios:

If children of male employees but not children of female employees are entitled to attend a company nursery, there is direct discrimination based on the sex of the employees. If, on the other hand, children of full-time employees, in contrast with children of part-time employees, are entitled to that advantage, it is a case of indirect discrimination based on the sex of the employees.  Part-time employees are predominantly women, whilst the full-time employees are predominantly men. In both cases, children of the disadvantaged category of employees suffer ‘discrimination by association’. It makes no real difference, with regard to the children, that in the first case there is direct discrimination and in the second case ‘merely’ indirect discrimination based on the sex of the employees.

 

Her analysis of the examples is correct but crucially the “association” in these examples is based on the relationship of parent/carer and child which is consistent with Coleman.  It is similar to the example we have outlined above concerning the reservation of seats on a coach.  The facts in CHEZ are radically different.  The association arises, on AG Kokott’s analysis, from nothing more than the fact that Ms Nikolova was also disadvantaged.  By adopting such a broad definition, the concept of indirect discrimination is undermined without lending any support to the rights of the disadvantaged group. In other words, AG Kokott has been persuaded by an example which bears no resemblance to the facts that she was considering.

 

(iii)           Conceptual basis of indirect discrimination is undermined

Indirect discrimination by association undermines the conceptual basis of indirect discrimination if the definition of “association” is as broad as suggested in CHEZ.  That is, the prohibition on discrimination is intended to eliminate seemingly neutral practices which place certain protected groups at a disadvantage due to their particular circumstances.  However, the logic of CHEZ is that everyone in the predominantly Roma regions can bring a claim for discrimination regardless of their own background.  This is because individuals outside of the protected group can “piggy back” on the group disadvantage experienced by others for no other reason than they are also subject to it even if the “group” which they belong to does not ordinarily experience the disadvantage or does not have a protected status.  This is to turn the notion of indirect discrimination on its head.

The absurdity of this position can be illustrated with the following examples.  

A magic circle law firm will only promote senior associates into the partnership if they complete a secondment within a client business.  Nearly all of the secondments require the senior associates to work and live abroad for 6 to 12 months.  Within this firm, this policy places women at a particular disadvantage because they are predominantly the primary carers of children, which makes travel abroad for such periods of time almost impossible, and as such there is prima facie indirect sex discrimination.

 

At present, only working mothers would be able to bring a claim for indirect discrimination.  However, the logic in CHEZ would dictate that if there was one working father who was the primary carer of his children, he might also be able to bring a claim since he would be affected negatively by the policy.  In other words, he belongs to the gender that is not ordinarily disadvantaged by the policy and yet might still bring a claim.

An employer has a policy that it would not supply vegetarian meals in its cafeteria. This would place any employees of the Jain religion, or some Hindus and Buddhists at a particular disadvantage.  It would also place any employee who is vegetarian, although not for religious reasons, at the same disadvantage.

 

Under the current law, only those employees who are vegetarian for a religious reason could bring a claim for indirect discrimination. Under A-G Kokott’s proposal, any vegetarian employee could bring the same claim.  Accordingly, vegetarian employees would be treated as though they belonged to a protected group even those they have no such legal status.

 

(iv)           Justification defence

If the ECJ follows AG Kokott, the change in the law will increase the number of claims that could be brought. However, it would not necessarily increase the number of successful claims.  A discriminatory PCP can always be justified.  Part of the justification exercise is to balance the impact on the disadvantaged group with the legitimate aim that the employer or organisation is pursuing.  There is an argument that this will be easier for respondents and defendants if there is a broad notion of “association” as outlined in CHEZ.  That is, if everyone who wants to sit together on a coach is disadvantaged, which is the logic of CHEZ, then it tends to lessen the impact of the PCP on the disabled passengers and their families.   Similarly, if the working father can bring a claim for indirect associative sex discrimination then it dilutes the disadvantage suffered by the working mothers.   Accordingly, it may be easier to persuade the Courts and Tribunals that the justification defence is made out.  In other words, CHEZ is arguably regressive in its effect.

 

Conclusion

CHEZ is an unusual case and most legal commentators would not have predicted that AG Kokott’s Opinion could have heralded such a radical change in the law. However, the ECJ is not obliged to follow her Opinion and it is perfectly possible that her analysis will soon be dismissed as nothing more than an anomaly.  At the time of writing, it is not known when the ECJ Judgment will be handed down.

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