Watch out for Indirect Discrimination by Association
The European Court of Justice has ruled it is possible to bring claims of discrimination by association under the EU Race Directive in cases of indirect discrimination, as well as direct discrimination. The case is not an employment case but will have significant implications in the employment field.
Under the EqA 2010, a person is able to bring a direct discrimination claim if they are treated less favourably because of the protected characteristic of another person with whom they are associated. So, for example, a woman who is harassed because her husband is black, can bring a race discrimination claim even though she herself is not black. This is known as associative discrimination or discrimination by association.
In CHEZ Razpredelenie Bulgaria AD v Komisia za Zashita ot Diskriminatsia, the ECJ considered whether the Race Directive also outlaws indirect discrimination by association.
CRB supplied electricity to a district in Dupnitsa in Bulgaria which was mainly populated by people of Roma ethnicity. It placed electricity meters at a height of six metres. In other areas it fixed the meters at 1.7 metres, which allowed users to check their usage. The reason for the difference was that there had been a significant amount of meter tampering and unlawful connection to the electricity supply in the district.
N ran a shop in the district. She was not of Roma ethnicity. She complained that she had been discriminated against by the placing of the meters, which prevented her reading her meter and assessing how much electricity she was using. Roma people were disproportionately affected by the policy. Although she was not of Roma origin, she identified with the Roma in the district where her shop was based.
The European Court of Justice (“ECJ”) accepted that although N was not of Roma origin herself, “Roma origin” was the basis on which she considered that she had suffered a particular disadvantage. The Directive protected her against such discrimination.
Extending the ability to bring associative discrimination claims to cases of indirect discrimination could cause headaches for employers. For example, if an employer refuses a man’s request to work part-time for childcare reasons because the job needs to be done on a full-time basis, he may be able to bring an indirect sex discrimination claim on the basis that the requirement to work full-time disadvantages women (who tend to be more likely to be responsible for childcare). He will be able to bring a claim, despite not being a member of the disadvantaged group (women).
Until now it had been thought associative discrimination cases were limited to cases where a person is disadvantaged as a result of a family member's protected characteristic. This case suggests that protection against can be wider than this. It was sufficient that N suffered the same disadvantage as those of Roma origin.
Employers will therefore need to consider whether any policy or rule they introduce, or any decision they make, has the potential to discriminate on grounds of a protected characteristic (even if the employee(s) concerned do not possess that protected characteristic) and consider carefully whether the policy, rule or decision can be objectively justified.
The UK’s indirect discrimination provisions in the EqA only apply where the claimant possesses the protected characteristic. They do not prohibit associative discrimination. However, the UK courts have an obligation to give effect to the EU principle of non-discrimination and will have to disapply inconsistent provisions of UK legislation.
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