..

2003J Discrimination, Equality and Social Inclusion

permitted,ifit causesunjustifiable'indirectdiscrimination' or 'disparateimpact'."
Here formal equal treatment becomes unlawful where a rule or practice
Discrimination, Equality and Social Inclusion
disproportionately operates to the disadvantage of one ofthe protected groups,
and the rule or practice cannotbe objectivelyjustified. A third kind ofdeviation
Hugh csuu permits preferential treatment for protected groups in certain circumstances, in
order to redress a prior history of disadvantage. The exact scope of permitted
'positivediscriminationisdeeplycontroversial,no doubtbecauseit isperceivedas
Although laws against discrimination have conventionally been justified and
conflicting sharply with the equal treatment principle," These three deviations
articulated according to various conceptions ofequality, tensions between different
notions of equality undermine the coherence of these explanations. The aim of
reveal thatwecannotunderstandthe aim of anti-discrimination laws by reference
.toastraightforwardequaltreatmentprinciple.The questionbecomeshow canwe social inclusion is proposed as part ofan alternative justificationfor discrimination
accountfor the law in away thatbothrecognises the force ofthe equaltreatment laws. As well as exploring the meaning and implications of the policy of social
inclusion for discrimination laws, the extent to which the law already embodies this principle andacknowledgesits deficiencies as a complete explanationofthe aims
idea is assessed with particular reference to the scope of anti-discrimination laws. of the law? ,
proof of discrimination, j11stificatioll defences, and positive discrimination. It is
Conventional accountsof the aim ofanti-discriminationlaws try to answer that
11:-,
,
concluded that the goal ()(social inclusion has the potential 10 provide a vital
ingrediC'l1t ill'a more coherent, though not uncritical, account of the aims of anti-
r
discrimination legislation.
{"
,
Theaim of equality e.
j
What is the general aim of anti-discrimination laws? At first sight, legislation in
i'
the European Union and the United States advances a conception of equality as
f
its generalaim. Indeed,anti-discrimination laws have oftenbeen dubbed'equality
I t
I
laws".' The central case of prohibited conduct is less fav'ourable treatment of
j
another person on grounds of because of)their race, sex, or one of the other
I protected groupclassifications. This standardinsists uponequal treatmentto the i
extentthatpeopleshouldbeassessed withoutregardto certaincharacteristicssuch
as sex and race thathave often been a source of disadvantage in the past. Equal
treatment demands impartiality in the sense of forbidding criteria such as sex or i
f
race from providing grounds for differentiation.' Yet the aim of anti-discrimina-
f
tion laws cannot be reduced to equal treatment. f
A closer inspection of the legislation reveals three kinds of deviations from a
simple equal treatment principle. In some cases, different rather than the same
t
treatment is required. In the case of discrimination against pregnant women, for
instance. the law mandates different treatment of \Iomen rather than the same
treatment a,men.-1 Similarly. different treatment ofdi",,:"cd per' .insisrequired in
m.uiv rcspccb. In order to enable them to gain acccs- Ic' work and other
opportunities.' In a second type of deviation. equal treatmcLl i, itscl! not
.., London Sch 101 of Economcs. Th.mk (J\\cJ to many who commented on
earner drafts of this essay. especially Oonagh Reitmann. Richard Nobles, and Nicola Lacey.
S. Fredman,'Equality: A New Generation? (2001) 30ILl 1"5:C. McCrudden,'The Effectiveness
of European Equalnj Law: National Mechanisms for Gender Equality Law in the
Light of hlf"r
Can
Requirements'(199:1) 1:1 OJLS:120; B Hopple. M. Cous,e"and T Choudhury.
:1 SI'\\ Report of the Independent RCVIC\\ of the oftiK Anti-
I ;""111,'1>";; J lthford Ibrt.:'1I()(j1
_ It: 1:( An 2\::) ('j\il RI'-.:hl') A,-:l !LJ(1L "TJlk' VII. l'Se":1){I(k-:..'Llj{l,
.. 1_ JII-'I((' (lfll! t/II' Polu, "f rPmu-vtou Pr-m.vton t
i
l1i \ l' ! " i l \ Pre'''';, 19t)(])
Ch"l'i"! ,I . .
I-e OJl .'"'-l:'., :,r..: Ii '-.l.:: 1\'1111r..:Ct!\i,: ,';,:1,-' /).11 ::.: \1) :'()il'
\\"i] \')')1'. -i.' i : 1>1-'1- j'-\L I" Din.:cl'\,:
(i,il'" 1\;
\ .": Ii, .
question by using another conception of equality, one that furthers a substantive
or distributive goal. Deviations from equal treatment are justified by reference to
thepursuitofgoalssuch as equalityofresults, equalityofresources, or equalityof
opportunity, For example, it is argued that permitting claims for 'indirect
discrimination' or 'disparate impact' serves the purpose ofreducing institutional
barriers to the achievement ofa distributive goal such as more equalityin results
or fairer equalityofopportunity'Similarly,in European law the permittedscope
for positive discrimination is determined in part by reference to a substantive
conception ofequality: 'With a view to ensuring full equality in practice, the
principle ofequaltreatmentshall not preventany MemberStatefrom maintaining
or adopting specific measures to prevent or compensate for disadvantages linked
to [sex, race, etc.] ...,9 Although the precise conception ofsubstantive equality
remains ambiguous in such formulations, it certainly seems possible to justify
deviations from the equal treatment principle by reference to some distributive
conception ofequality. The problemfor justifyingthe aims of anti-discrimination
lawsbecomes ratherto restrain or confine the force ofa substantiveconception of
equality.
This problem arises because there is always a tension between the equal
treatment principle and substantive conceptions of equality. Because equal
treatment determines a procedure rather than an outcome, equal treatment can
always bechallengedasobstructingtheachievementofa particularoutcome.This
tension ismost obviouswith respect to a strongegalitarian version of equality. If
theaim of the legislation isperceived to be strict equality ofOU[lOIl1C:';. any rule or
practice includingequal treatment that prevents the achicvcmcui of .u: cgnlit.uiur.
,
6 Eg ECDirective 200078, Art 2.2(6); Ci\il Rights Acl !"I,".. VII, '12 LSC s .m.l
lk)
7 M. B. Abram, 'Affirmative Action: Fall Shakers and Social Engineers' (19S6)99 Hnr vur.l Lou
Review 1312. This conflict was the conceptual framework within which US consuunion.u law
addressed the issue ofreverse discrimination: Regents Univcrsity of Caliiornio v Bakke, l (S
265,90 S Ct 2733 (1978) (Supreme Ct US).
8 C. Mct ruddc, 'ChangingNoti.vn ofDhcrimlnalioll' ill S. Gucvt and .\. !\1i1nc Icuv]. F'.(/IIU!tI!"
..mil Discrinnnation Essav. rn Fit",jon,' .a.d Luvtn c -\R'.P YI'! (Stull:..'..,:-: Irant'
\6: J. Gardner. 'Liberals-and L'nluwlul ln-cnmination (19S
l
)1l} O.lIS"1 The varil't', 01
distnburivc s('l1"esor equality found in th' l.iv i': S lrcdm.u.. fJI,(! -
(Oxford: Oxford Pre.... ". 2(11)]) (h,IP!Ct !: ( ll;lllul'd <.Ill" H ikppk,
FqlJ<1lit\' 12lJOtlj -iq ClJ
UJI.: ....ti\( '':-;, Lc of -i-. !"\(I\::I11I--,;- '. ()1 l r- 'ih!i-
!- "
\1.'
______________
-
The Modern Law Review [Vol.66 January 2003]
Discrimination, Equality and Social Inclusion
,
outcomemustbe questioned, Forexample,iftheegalitarian outcomeisdefined as
defining a goal that less frequently requires deviation from the equal treatment
an equal distribution ofjobs between men and women, any rule or practice that
principleisplainlya steptowardsa betterresolutionoftheproblem, Nevertheless,
obstructs that goal would have to be challenged, including an equal treatment
this routecan never be entirely successful. Ifthe narrowdistributiveaim has any
principle that insists that men and women should be assessed on their merits,
J substantive content at all, it must at some point come into tension with a
disregarding their sex. But the same problem arises in connection with any
procedural rule thatis blind to outcomes.
substantive conception ofequality, including the apparently less ambitious goals
ofequality ofopportunity and equality ofresoui-es. Whenever the legislation
seeksa particularsubstantiveoutcomethatconcernsa distributionofadvantages
amongsocial groups, a proceduralrule thatforbidsconsiderationofmembership
ofgroups as a relevant criterion for decisions must obstruct the pursuit ofthat
goal.
Courts have to resolve this tension between the equal treatment principle and
substantive conceptions of equality in particular instances. The predominant
method in Europe is to use a test of'proportionality'.10 In the United States,
courtsapply the-equivalent test of'strictscrutiny'."! The gist ofthese tc<';'" is that
specific measures designed to achieve substantive equality must not he
disproportionate violations of the equal treatment principle. Although this
formulation provides a tool for judicial examination of the issue, it does not
resolve the tension between the equal treatment principle and substantive
conceptions of equality. The more a specific measure is likely to achieve the
desired substantive equality, the greater will be the tension with the equal
treatment principle, and the harder it will be to justify under the test of
proportionality. A court has to produce fine distinctions between measures that
represent onlyminorand deviationsfrom theequal treatmentprinciple
and measures, that go too far in the pursuit of a desired egalitarian outcome.
Wherevertheline isdrawn,a decisioncanalways be criticised as displayingeither
a slavish adherenceto theequaltreatmentprinciple01a dangeroussacrifice ofthe
principle.The,tension remainsbetween,on the onehand,anaimofensuringequal
treatmentfor,'Illcitizens regardless ofcertaincharacteristicssuch as sex and race,
andon theotherhand,an aimofachievinga moreequaldistributionofwelfareor
resourcesamong111 citizens thatmayrequirein someinstancesdifferent treatment
on the grounds ofthose samecharacteristics.
Manypossible routeshavebeenproposedas providinga betterreconciliationof
the tension between the equal treatment principle and substantive conceptions of
equality" Here I do notwant to enterinto the details ofthese proposals. except to
drawout ofthema senseof the strategicchoicesthat c.r he madeand kSSU;1S
mav be learned from following various paths.
:)::c: route for ..resolving the tension I' to seek 'llh,tall1:"." ,!('licepli,.1 of
cqualitv that is sufficiently limited thin It rarely. if ever. l'Ja,he'S \1 It:' '11C lqUld
treatment principle, The idea of'equality ofopportunity' provides an cxalllI)k ue
this approach. Leaving aside the indeterminacy or this notion. the stratcg> ,d'
II) Abrahamsson & Anderson \' Fogetqvist C- 407 n [2000J Eel{ 1-5534. [2002J IeI' Arp!J(<Ilion
b v Badcck, C-15X;n[2(00) Eel{ I-IS75, [2000J lRLR432: I.onnnc. v .lflni"I,',. ":111 Ltnullvoi:
Sall/lIrhe!Jf'cr En Visscri] C-476 99 [2002] IRLR 4.1fL S Frcclm.in. f)i\'crill1lno f / ( JN IJJ:\' (O.\fdrd
()xf'ord Lnivcrslt)' Pres", 13(1 The-e C,hC"') dr,cu;-.\ t hr- :tjlj1lic;!tl\'il; ,Ii t h,. '.. uhcr i ;L..:
j l)lfV,,-'li\;..' Itl \rl .)/4), \\hIL'IJ >- !J\lll:l,d (:) '
('! [11,..:- III ii,' "CI,
to u-:! conk',: u! l'r,,)! )) I, 1"'
:,<, 1; ..' ',1 l1:uh(I(1[
'!': \ J I
A second strategy consists in confining the strict application of the equal
treatment principle to certain distrihutive allocations. For example, it might be
proposed that equal treatment should be rigorously observed in hiring decisions,
but with respect to trainingand other'outreach'measures,equal treatmentshould
besacrificedin thepursuitofa substantivegoalsuchas fairequalityofopportunity.
The problem that this strategy encounters is to explain the principleon which the
division ofdistributive allocations should be drawn. In practice, the law does not
seek to drawsucha division, butratherappliesthe equal treatmentprinciple across
the board, Thelegal question remainswhether the departurefrom equal treatment
in the allocation of training and other benefits represents a disproportionate
violation ofthe equal treatment principle. For example. legislation in thc United
Kingdom permits employers and trainin<; oodles to grant prcfcremiat :lCCS5 to
training to a particularracial group, but onlyif there areeither no members ofthe
racial group doing the work for which training is supplied, or their proportion is
comparatively small.'? Similarly, in a case concerning an employer's child-care
facility reserved exclusively for women employees, the European Court ofJustice
concluded that the employer'smeasure failed the test ofproportionality, because it
excluded maleemployeeswhotakecareofchildren by themselves.I) Thestrategy of
isolating some distributive decisions from the application ofthe equal treatment
principle,thoughpossiblein theory,appearsto be unacceptablein practiceowing to
the force ofthe equal treatment ideal.
A third strategy for resolving the tension tries to dispense with the equal
treatment principle altogether by redefining it as 'equal worth', 'equal respect'. or
'treatment as an equal';" Under these formulations, different treatment in the
pursuit ofa distributive goal is unobjectionableprovided that it does not involve
disrespect for anygroup, Indeed,equal respect, particularlvwhen formulated as a
claim for recognition and empowerment ofan identity,!" may require different
treatment, because respect(orrecognitionorcultural empowerment)may involve
accepting and accommodating differenc-!" Although this strategy dl'oids the
tension we have been considering. it achieves this result only by di'l'arc!lng the
cqua] treatment principle A white m.ii; :ll the rCl'cI\ing end (If:td\l'r'e trc.uu.cut
:irlsini' I"on! ,'11 aflirmatl\c ;;cli,)!] quota call pcrhaj, accept ;);:JI 111' tr,',lfTllcnt
In;-lY not involve bud motive- or d;.,jl..'-.;r':'-'l"l, hltt it Ill\'i1l\ ',,., U!L.:y'.:;1l
trcaliliC"ll. treatment on the b:l'I' nf[!ciltlc:r or racc.
f[h right III hc' Ilcalcl! with respcct dignity not have bcrn !lIfrrnl'c',L hIt
j,,, (,[hcr ri,dll 10 l'y",,1 treatment has been plainly violated. Radical 1'()iL'l', III
falOlll' or tllyehily may 110t he cOl1,'crned about tll, abandonment of an equal
treatmcnt principle, because ofus tendency to impose a hC,l'eI110nlC white. mule.
\i , !
(i) 'il e,l
!: ' ::1
, I'
) ;1
'I i v. 'i! \1' I, '!
"1'(', 'i ,-'rJ,
__ ... .._---
-or:","'l\<'>' ..'",,.. .. -.--r
The Modern Law Review January 2003]
[Vol. 66 , Discrimination, Equality and Social Inclusion
heterosexual norm. Yet anti-discrimination laws in their definitions of direct
discrimination and the application of the test of proportionality io practice insist ,
upon a process involving equal treatment, not merely equal respect. If we accept f
that an equal treatment principle will remain at the core of anti-discrimination .
laws, what we can draw out of this strategy is rather the recognition that as well as t ....
i equal treatment, anti-discrimination laws may also seek to uphold a principle of
I
equal respect. These two principles may produce a new tension when equal respect .
requires different treatment. I doubt whether this new tension could be adequatelY'.
resolved without reference to a distributive goal that explains when equal respect "
should override equal treatment. .:
A final strategy for resolving the tension between the equal treatment principle "
Ji
and a substantive aim of equality that I want to highlight is one that diminishes ;
the principle to an instrumental rule, This interpretation identifies a distributive r
goal as the dominant aim of the legislation, and regards equal treatment as a \'
useful guide to how the aim of the law should be implemented, though whenever
the substantive goal requires different treatment. the principle of equal treatment
should be ignored. Again this strategy provides a route for resolving the tension,
though it encounters considerable difficulty in explaining why the anti-
discrimination laws as currently formulated seem to place equal treatment as a
dominant principle. This strategy must also provide an intelligible and coherent ;'
account of the distributive goal to be attributed to the legislation, and it must have f
a plausible explanation of why the pursuit of this goal normally involves the l
procedural test of equal treatment.
From this perfunctory review of the strategic choices available to accounts of the
aims of anti-discrimination laws, I draw a number of lessons. First. any plausible
interpretation of the aims of these laws must award the equal treatment principle
an important role. The second point is. however, that an explanation of why
different treatment is sometimes required or permitted seems to necessitate the
inclusion of a distributive aim for the legislation. It is the distributive aim that
explains when and why deviations from equal treatment should be required or
permitted. Thirdly, an additional principle of equal respect or equal worth
probably should also be attributed to the legislation, but not to the exclusion of the
equal treatment principle. Nor does this additional principle remove the need for
attributing a distributive aim to the legislation. Fourthly, any distributive aim
attributed to the legislation will have a trajectory that will eventually bring it into
tension with the equal treatment principle. Although ,his tenvion can be reduced by
diminishing the ambitions of the distributive goal. it nCI,' .nsappcars entirely. The
final lex.on to be dra-vn is that it may be poxsiblc to dctinc ,:istribuli\\.; goal th:ll
entails the usc of equal treatment as its operational principle, but which also sets
limits to its operation by reference to the distributive goal. The two main difficulties
conlronung such an interpretation of the aims of the ami-discrimination legislation
arc to define an appropriate distributive goal and to explain why this goal requires
considerable weight to be attached to the equal treatment principle,
All these considerations point towards a solution that attributes a weak
e!c';lliuri:lIl distributive goal to the legislation, such as equality of opportunity.
:-'ueh :\ phru: both Implies that equal treatment ,h,'uld be the normal !'raetil":,
hilt :!I,,' admit> the l'0)sihilitv that to render opportunities equal in practice It may
he' ne"'-,,';Ir\ to :tlY"I,! uucqual uc.umcm Ii) ',lI1lC instances On l'\oser 111-;pectIOIl.
;"['.\\\.'\\_T ..'lJ '-.' .nion rr"il.l'" in:llk'qu:tll' \\\. kJl(l\\ l h.t l l:llll:\]
'.-iil "I ','Ii,,',' "", ,'; ','11"\_' l)!' Iii,
the types of skills, education, and experience that count as merit for the purpose of
qualifying for jobs merely tends to confirm or reinforce the effects of
17
disadvantage. In pursuit of the goal of equality of opportunity, therefore, we
need to intervene to give preferential treatment to disadvantaged groups. The
problem is to know how far to take this intervention, because it is arguable that
whenever inequalities in results can be discerned, there must be some inequality of
opportunity that ought to be remedied. This problem is often addressed by
refining the goal to be one of fair equality of opportunity, which of course merely
restates the problem under the rubric of fairness. The question becomes when is it
fair to treat people in exactly the same way, and when is it fair to treat them
differently.
What interests me about this formulation of the possible distributive goal for
anti-discrimination legislation is that it eschews any direct reference to
conceptions of equality, Some notion of equality may form part of the idea of
fairness, but that is not a necessary conclusion. This step opens up the possibility
that the distributive aim of the legislation can be adequately described without
reference to conceptions of equality. But if not some nO!]()!1 of substantive
equality, what kind of distributive aim might be attributed to the legislation?
At this point in the argument, we may tum towards an examination of the
explicit political justifications for the legislation that can be discovered in
contempcrary government documents. As we might expect, these documents
include frequent references to various conceptions of equality, particularly
equality of opportunity and equal worth, But there are abo two other strands
in the political justifications for the legislation, One stresses the economic benefits
to be obtained by enabling all members of a nation', workforce to participa tc in
the economy to the fullest extent of their potential. This argument comprises a
standard justification put forward by governments for regulation of labour
markets that the proposed regulation will improve the competitiveness of
business.l'' A second strand of justification. however, should interest us more.
because it is more directly aimed at explaining the aim of anti-discrimination laws
This element of the official discourse refers to the not ion of social inclusion as a
key justification for anti-discrimination laws.
Social inclusion
'Discnnunauon usu.illv amounts to ili (clj-m.
o j U
;,\:(1 douht v.
should he wary too much significlnc,' k, 1",III)(":,! S,'nic 11',:1:,
be mere froth, and most l;;Ja) be lklibcrateh amhwilouS Hut I thin k that the
notion of social inclusiou represcnis a ,ignificillt ,hie: III P,)lltle,tt bC'l'<II1,C:
it fits neatly Into a !'(,ileral strategicneed of 'Tlillci iL,\' r<'litics:
u
The 'llllld \\;\\
B. Herrle, 'Discriminnti.u- and Equaluv uf Opportuuu, :,\,lrthcrn l n-h l-)QU) 10
OJLS 40R; 1. M. YOUl1ll, above 11:'. Ch;'plcr 7: B Pard,h. "lhc CJ';;,-' for Po-iuv,: Il,,,,,,,,",,,,,
Hepplc and L (etl,,). j.l"'\\l"1mi!lIIfIlI!l
I ..
T/,.{ I nil 1", Ii \)]llk':1 jq'-!
!k H.
19 Uep;:nJllC'll1 of Tr.i.! ,'"

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TheModern LawReview [Vol. 66
tries to distance itselffrom ezalitarian ideals associated with traditional socialist
movements, whilst promising more practical and effective measures towards a
fairer society than those offered by traditional social democratic parties. The
category of the socially excluded is more precise than those suffering from
economicpoverty. Thegroupofthe socially excluded is defined lather as people
who are effectively prevented from participating in the benefits of citizenship or
membership ofsociety owing to a combination ofbarriers, ofwhich poverty is
merely one. Otherbarriersincludepooreducationalopportunities,membershipof
a disfavoured racial minority, an inaccessible location, responsibility for family
dependants, or, more commonly a combination of such factors." Byaiming to
eradicatesocialexclusion,the centre-leftpoliticalpartiescan steerapathbetween,
on the one hand,promisingstrongegalitarianmeasuresinvolvingsubstantial tax
and transfer measures, and, on the other. merely offering a protection ofrights
without any substantive commitments to distributivejustice or a fairer society.
Although the phrase social exclusion spins continuously from the lips of
politicians in Europe and has become it centrepiece of European Community
Social Policy,l:'it isseldomdefined. Whenclarificationisgiven. there .HC ccrtainlv
convenient ambiguities and puzzling divergences in mcanings,:'1 Yet the same
might be said about the concept ofequality, and that does not prevent us from
taking the ideal ofequality seriously, The problem is rather that the concept of
social inclusionislessfamiliar thanequality,so thatits meaningsandimplications
appear even murkier. Itis not part ofthe familiar repertoire ofliberal political
theory or inscribed routinely in constitutions and declarations of rights.
Sometimes appeals to the principle of social inclusion amount to no more than
coded demands for equality ofresults or a moreegalitarian society. Here I will
concentrate, however, on the strands in this discourse that distinguish it from
conceptions ofequality including egalitarian notionsofwelfare. "
Social inclusion is an aim or principle of justice. 11 is often mistaken for an
egalitarian notionofdistributive justice. Thismistake is understandable, because
the demandsofsocial inclusion may require help to be given to the same groups
such as the poorwho arc favoured by laws based uponegalitarianjustifications.
Social inclusion and egalitarian ideals share a concern about outcomes or
distributive patterns. Yet there is also a fundamental difference. Social inclusion
docs not seek the same or broadly equivalent outcomes for citizens. It
concentrates its attention not onrelativedisadvantagehetween groups, hut rather
011 the absolute disadvantage of particular groupsin y.riet:- The 0hjccti\\: is not
somenotionofequalityofwclfure.but aile ofsecuring aITIt;.mdl11 k".el o:\\eILlfc
f.u CYL'ry CitL/CI1. 1ts typicd turuct s are "cLilJ poverty". 'll:l(,l1ljJ>'l\'cd : (Jf
'r.tciul minoritiesin deprived ncighbo.rrhood-.'. no: a more gencr:!l eLJ.: :ih'lt!nn of
welfare.
21 For a guide to of encapsulated Inch]i.;.ion Socwl
Exclusion Unit. Cabinet Office. Preventing Social Exclusion, (March 200l) hllp:!iWW.c,lb!I1et,
o[ficegov.ukjseu!200t/psejPSE%20HTML/dcfault.htm. For a global perspeclive on Ih<'origin'
.ind ofthe notion ofsocialj ..... -l,,';n" r , R{'dp'TS. C. andJ. B. 1,'i2Ul":fl.::\.h, (.:d"l,
,")O:'lr.,/" {: ;,ru'wn, f<l'u!7!l' Ir:1cmatic.loal In;,;\;,illtc L\h\1U:
StUJk,'" lllkrliatiullJ.1 Ltb'.'l:!' I)f\:..:l..:.
\)tXil,\Oll ;\0 SO.;.(\02'LC (\l' ot (he ("('1..:", ...."1 ,[ . !),'l .',.,.
,,':.l;d< l< ( c;L.'. ,h';"> 'v 'r' \1 I,
:--,' <.'.1;:,1 '(""d ,-_'..i' ,"] I' (II ; I
1"1 !
1,1
1
January 2003J
Discrimination, Equalityand Social Inrlusion
Thisdifferencefrom the ideal ofequalityofoutcomescan lead anothermistaken
t viewthatsocial inclusion must thereforebeconcernedwith equalityofresources.
The idea ofequality ofresources is that individuals should be assured as far as
possible an equal chance in society to achieve their goals or that there should be
\ equalityofopportunity.Withoutinvestigating further the controversial questions
Iofwhatmightbe meantby 'resources' or 'opportunity'in those formulations, we
can distinguish the aim ofsocialinclusion on two grounds. First, social inclusion
. does not set itself the (ask ofensuring an equal distribution of resources or
. opportunities.Thepointis ratherthatbecausesome groupshave so few resources
or opportunities, we should redress that position without undertaking a broader
i. redistribution. Many advocates of ihe Third Way' support equality of
, opportunity in order to distance themselves from egalitarian goals and to stress
their respect for individual autonomy.i'" Given their acceptance of the limited
capacities ofgovernmentseffectively toredistributeresourcesoropportunitiesina
markct society, however. their ambitions for regulation seem to he confined in
practice to helping those who arc completelyexcluded. The second. fUl1chme:ltal.
difference from ''.!\Iztlity of resourcesC"\1O>iStS ill the conccru for SOL'I:,l inclu"i\)ll 'h
an outcome. It is not enough under the aim of social inclusion to gi\e a bigger
share of resources or opportunities to disadvantaged groups, and leave them to
choose whether to take up the possibilities they provide. Social InclUSIOn is
committed to the achievement ofoutcomes, not Just life-chances. The 'lgniticance
of this point emerges more clearly if weconsider the nature of the outcome to
which social inclusion aspires.
The aim of socia! inclusion IS a type of wcltarism in the sense that the outcome
soughtisto improve the welfareofdisadvari.aged groups. Yet it is the same :'S
utilitarianism or the maximisation of welfare, for social inclusiongive, priOrity to
the welfare (Ifthetargeted groups. even ifredistribution in their Eli our lloes nol
\ maximise utility." Furthermore.we should distinguish the type of welfa:c sought
by social inclusion from that used frequently in economics and policy sciences
The type of welfare required under the aim of social inclusion is not the
satisfactionof preferencesIorrr.-d .o which the stateadoptsa neutral
attitude. There is a perfectionist clement in the idea of social inclusion, in that
there is a conception of the essential elements of 'well-being";" These essl'l1lial
elements of 'wcll-bcinu' include material goods such as food and hut alSLJ
include opportunitic. to p.rrticipatc III "l::lllim:fu! \\:l\ III .llcla] !oJ.,'.Th.".: 11"11-
mclu.i ;i ld L'du...'<tlil)n. -n r\.)1
1
: k '>.-
Lul1ural all..1work. :-J:cluld he ::Ht.' pur. l':i:.''ir..'ii
in i .... '!'.ttl(lJll\.J 'dl'-'\_' li;,'il-lll,:l,:JUJ -, Hl'<Jrdcr al!ll\.J\I..'.i ...'.;1t,' \,.;' '\\vii-
being'. Thu- l\'lst and c.hj..',:tl\ \:,t 110:1'111" ,lj" \\ l'lt';.l! L'
'\Vclt-tk'lng" IS tl) the ,-'.\<'111, it li.JCiliil-il''- ,:j
24 A, C;dlkn.; :Jl")\)\(' 11 2fl. R \lu!J'':lJdcr, -n.. ':"1."i1!? u., Thlr,: \\ ,'\
lhl' Pnnc.:lpi.: .lnC; the ..\ S(\'I.:d Dcrnl-1Cf.l,--':,
L. t.rrl \,'l> 4')\ Ii C, i" 1:1"1',-' :1 n,rd \\-,l\' 1l"1 I
J ,''',In " i i';'_ \1i r),' l),-' ),',.; i ,:1, .'-:,I (
I .
,
'J
I
The Modern Law Rel'iew [Vol.66
activitiessuchas work,education,politics,andcultureas the mostsignificantsites
, for the achievementof'well-being'. But'well-being' isalsosubjectivistbecausethe
individual is permitted a range of choices about goals in relation to these
worthwhile activities.
I
Although nosharpline can be drawn thatdeterminestheminimumacceptable
I
level for these material and non-material goods, social inclusion insists that
whereverthe line is drawn, everyoneshouldbe raised to thatlevel. Itis therefore
not sufficient for governments to provide material resources in order to tackle
social exclusion. Non-material goods such as work are, if comparisons can be
I made, more essential elements of'well-being', and social inclusion demands that
!
disadvantaged groups should receive those non-material goods. Access to non-
material goods requires, first, that the social organisation of these activities,;
permits everyone to enter them without insurmountable barriers, and secondly, f.
that each enjoys the ability to choose between a range ofpossiblegoals in ..
relation to these activities.
This emphasis upon the distribution ofnon-material goods derives from the
deepest ambition ofthe aim ofsocial inclusion. Although we have observed that
social inclusion shareswithequalitya concern with the distributive allocations to
groupsandindividualsin a society,its morefundamental objectiveis the outcome
ofsocial cohesion. Social inclusion is a theory ofhow society can be integrated I!
and harmonious. At its simplest. the theoryisthat ifeveryone participatesfully in t
society, they are less likely to become alienated from the community and will
conform to its social rules andlaws. Social inclusion fosters social cohesionor, to
use an olderconcept,solidarity.Theoutcomesoughtby policiesofsocialinclusion'\0
is therefore not merelyjustice for individuals but also a stable social order.
Thesignificance ofthe connection between social cohesion and social inclusion r
needs t({ be stressed. In contemporary liberal theories of justice, it is usually
presented as to establish socialorder that we sh.ould establish a just or f,'
nearlyJU':'l society. If the conditionsofjustice are met,It ISargued thatwe owea r
moral or political duty to uphold those institutions and to obey the laws that f
express them. In practice, contemporary governments do not appear to place so I
much faith in a sense of moral duty. They recognise rather that social order is f
fragile and that they need to take measures to promote social cohesion. At times '
this recognition results in authoritarian regimes, which are indeed unacceptable f
and do not deservemoralsupport. But govcrnmcnt-,influenced hy the 'ThirdWay' '
use more subtle method- to promote social cohesion hich :hough not entirely
I'I'CL' from coercion, avoid the L'VCCSSCS of.ruthorit.rrian Sld(c', The aim orsocial
i inrlu-ion IS prcci-cl , t,,) "qabllsh conditions .md opport uuiuc-, that induce all
citizens to participate in society and to come to value Its inst.tutions and
I
r
potcutials 'People-vho arc economically discngagcd often become moregenerally
I
,
disengaged, reinforcing thc democratic dcticit
This additional element ofsocial cohesion explains in part the presence ,)1' the
objectivist ("rperfectionist)dimension of'well-being'. and it also accounts for the!
paternaliststrand in government policic, about sOL-ial iuclmion. Whereas the aim:
,-!'L'cil,al!l\ 01' opportnnity "'eL: to pili l'copk in :1 pl'siti"n ill which they arc able
(\) III 1Ill' CC1,111ll11l:: .\ud (\1111.-'1 ul'-, lil'l'. the aim \)!-
: I () r 1\ i jl. I 1\... \ . ,.) I 1.

January2003]
Discrimination, Equalitv and Social Inclusion
inclusion also seems to include an element that sometimes requires people to
become included. There are no rights without responsibilities. With respect to
work, for instance, social inclusion policies, though not forcing people to work,
strenuouslytrywith a mixtureofcarrotsand sticks to drivepeopleintowork.The
carrots are 'in-work' benefits and negative earned income tax,30 which are
designed to ensure that work provides more material benefits than welfare
benefits;andthesticksare the removalofwelfare benefitsfromthosewho donot
co-operate in seeking to find employment." These policies can bedescribed as
paternalist, becausetheyassert, for instance, thatworkis goodfor the individual
and society, and, even if you don't want to work, you should, if you possibly
can,32 Moreover, it is insisted that nearly everyone can work, provided that
individuals receive appropriate training and education, and that employers
dismantle unnecessary exclusionary rules. Thiscoercive element distinguishes the
principle of social inclusion from even the broadest versions of equality of
opportunity. which leave individuals with the freedom and the responsibility Ie>
make their own life-choices. including indolcnce.v'
It follows that there isa difference inscopebetweencgulit.rri.m wclfarist pohcics
and social inclusion. An egalitarian objective sets the outcomes that it wishes to
achieve, but has little to say about the means that should be used. ThL'method
could be one ofregulating both the institutions ofgovernment and the market.
Alternatively, the method could be one of progressive taxation and welfare
benefits, leaving untouched the institutions ofcivil society and the market. In
contrast,socialinclusionrequiresregulationofsocialinstitutions. Moneyis not an
acceptable suhstitun- for the non-material goods that form a core of 'well-being'.
In the case ofwork, for instance, having a job differs from receiving the same
amount ofmoney in welfare benefits. A jobprovides the opportunity to acquire
knowledge and skills, to participate in the workplace community. to achieve
meaningful goals, to acquire status or identity in the community, and to form
friendships. The policy ofsocial inclusion wishes to distribute these non-material
goods to all members of society. Work is not regarded as a means to an end of
material wealth, but an end in itself. becauseit is a vital ingredientor'well-being'.
And the achievement of 'well-being' for all groups is an essential clement in
constructing a civil and safe community.
I will need to add further elements to this briefdescription ortile :l;m ('I'social
inclusion as we consider its implications as a potentialju-titic.uion tor [he- .urns of
anti-discrimination Llws What has Ill), ILl he'en mentioned. .m.! winch ilL'l'd,to he
recognised at the outset. is tli.rt the i hcorv 01' s"Lial iI1L'!USl('Ii, like ,til p"litIL',!i
theories, was not dL"C]",f",>,i i.: ;\ v.ui.um. but rather e\OhL'd in IL"I'"II.'e ell an
analysis of wnteml'prarv SI'Ci,11 problem- It i, a product of the politics pt' rich
Western countries in the late tvcuiicth ccmurv In t!J".sccOlllllrics, a m.nornv ,,!'
the population had ellJoyed since IlJ-tS an unprecedented continuous pLTioli of'
30Tax
:'1 Welfare Reform and I'cn-i.u.. ,\u 19'J\): S'-"_'llji!\' (Wclf.u, i.. \\'''lli R'..:,..:u1:lli, n.

1998 SJ On tl1\.' 'J'\','" <\1'. -cc PC:, "<'. \ I :l,,! i '!r.
:llI,1
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jet [
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The Modern Law Review January 2003]
f
[VoL U I Discriminauen, Equolitv and Socia! Inclul'i(ln
I
I
growing prosperity and had been able to alTord the institutional arrangements of
the Welfare State. But these arrangements seemed to be threatened by a minority
who had not participated in that prosperity and who seemed unwilling to accept
the norms of civil society. Although the material needs of this minority were
,
I
usually met by the Welfare State, they did not participate in society, and indeed
appeared alienated. There was a concern about the breakdown of social order in
inner cities, and particularly about a pattern of young people never joining in the
institutions of civil society - voting, working, marrying and forming families.
Instead of the Welfare State providing a solution, it was diagnosed as a source of
:'"';,'.,
I
iL: problem." Itwas argued that welfare dependency actually promoted the way
of life that rejected the institutions of a liberal and civil society. Whereas equality
had been the political ideal required to incorporate the working class into civil
:.
r
society, the idea of social inclusion was the political response to the need to
,
integrate the non-working class,
i;
Having described these elements of the aim of social inclusion, we can now
consider whether this aim informs anti-discrimination laws. Recall that the reason
why social inclusion interests us is that it may provide an answer to the question of
when i:s it fair to insist upon equal treatment and when is it fair to deviate from
that standard. I approach this task by identifying an architecture for anti-
discrimination laws that seems to be implicit in the aim of social inclusion. My
analysis highlights four pillars: how the social problem to be addressed by anti-
discrimination laws is conceived within the policy of sociai inclusion: how social
inclusion justifies deviation from the equal treatment principle: the methods of
proof of unlawful discrimination; and the extent of the requirement for positive
discrimination in the pursuit of social inclusion. This analysis enables us to
identify the extent to which a social inclusion justification may explain thc aims '
and the content of the current law, though it also provides a critical perspective all.
possible inadequacies in the legislation.
Sti ucrural disadvantage
What is the problem that anti-discrimination laws address" The equal treatment
principle defines the problem narrowly as direct discrimination, that i, treating a
person differently all. the ground of sex, race. or ""Ille other suspect eh\'silic:ltion,
But in so far as anti-discrimination 1,I,\IS deviate Ir.: rh.u '!'ndllill. it i,;,-,k:lr that
the social problem is reg:ll'lkd :1' one involving ":',,ctm,1i ,': s\'km:llic
disadvantage Ior p,'okctL-d ,'rl)Ups. The notion of ':'j,-"::cti 'ii":ld', ,lI1l::g(
Disadvantaged groups
Equality justifications for anti-discrimination laws lack a determinate view of how
to constitute the groups for comparison, The principle that different groups
should be treated equally (in otherwise similar circumstancesj does not describe
how these groups should be composed, Any group can claim that it is not being
treated equally and demand that it should receive protection from the law, The
groups might be comprised by reference to genetic endowments, socially
constructed categories, legal classifications such as nationality, or some other
criterion of classification. What is crucial is that the group is able to claim
plausibly that membership of the group puts individuals al a disadvantage. One
effect of the indeterminacy of protected groups 1II1der the equal trealment
P
rinciple is that the province of anti-discrimination laws alwavs remains ' 15 ,
contested. '
In contrast. social iilclu;,ion provides a morc determinate criterion I'D.!" the
cornposirum of P!'O!l:cled groups. The question is whether the gr oup is one thai in
practice ha-, been s,)cia!!y excluded eornp:ll',;d to the
as a whole. Under this criteri"n, for instance, single parents become a group to be
protected. because the lack of affordable and adequate child-care
tends to exclude them from material and non-material benefits. The pnnciple of
equality neither rules out single parents as a group III be protected. nor due, it
require them to be constHuted as a group for the purposes of discrimination law.
On the criterion of social inclusion, however, sex is not so clearly a criterion for
the composition of a protected grour. Within the category of there are
certainly groups of women that suffer from social eXClusion, such a: those Who are
pregnant or parents 'of young children, Itmay be argued. that mo-:
women suffer from sorm- compara!ile disadvantage during their lives, because the
potential for pregnancy has an adverse effect or. ali women in the labour market.
S0 that all women should be regarded as a protected class under the test of social
exclusion. But the social inclusion criterion for disacl\'antClgcd groups seem,
unlikely to include men as a class, so that sex on its own as a source of group
composition, as opposed to discrimination against women, would not qualify as a
relevant criterion for the composition of a protected group. Similarly, ifwe
msider age discrimination in employment, Justifications for legal interveIltion
Oil equality certainly permit the mclusion of this calegoJ"\. hut ai",,) lack ';'1\
ililtificat!I'J) f'JI it I" age groul", In e"':lr:t,l. ::ilJ:;tiIJc:,!!,';;
ha'cd ",\ "Jci:d C',c'lll,j'l1l 1\"ilid ll"lice ihc disrl'lli"'rtl"!ii:k i.: "l,,.,Iull"Iilp],,\_
. ")(nl pi oldc'!' people-, cinJ, iic"'.il1,incd \\liC/1 ;;',C(<I;'I\', (I "Ti"u,
combines two elements: IIISt. an apprcciauon th:d there P,!llCI'l', 01
in the tLilt i, the :11,:l' of '''. wouid regllLllc
dbadvant:lge or that there .irc group' tklt seem (iJ be di"pI'(lr"Htil'n:!lcll "nd
"g"in'i di'lTiminatl()11 in hirinc practic,'\ !hilt c\l'i\lde drrl'c!lI OJ Indlred!:
persistently in worse positions; and second, that there .uc ccrram permanent
"l'kL'I, a'Cc'li 5501 "bl'le. ,'I simI!<ir tindllH: of Jisauv-ant:lL(c rmch: .ilso 10
arrangcmcurs. practices. institutions, and social struct urc-, Ii\"t ]'l'nc!u,'C thi-
Pl'olc:di"n' of Ilorkns llnder :he age "f 22, "otice a, IICJ! Iliclu,i'1J1 i,
UU;",...-.IH.. ': define tl' nature S<)l1ITC"-, ot structural
not interested in whcthc. (he I, Cl:I"ltied by llIUJtCL!l'k i'L'netic:'.
disadvantage provides a framework for the ambit of .mu-discrunin.uiou hl\IS. '1'1'
constructed qualities. or kgidly lml'o,ed ch:lractl'ris!iL'S. L,c(ors whic'h
thi...-, fr.nucwork . it i" !tcl!)\'ul tn .: l.'!l'in:''1 (\(' th.:
",im',t'."", ",,'<.I tt) lk'c:mi,.',' [hc '"1',' "I' ,h"IIiJ1iTl:lr",!; :,'" 'I' C''''.. :
llj"()bk111 ()f-,lIUl.'tlif,t! ;"',,\ilPO'-.!(iI..'':1 ,-'t,
iL,.' ",( \h2!t :l:ltLll\' ("if'i:i, '""
[I , ,
'"
'. \ : i, . d;..,I j "::!'it : 1 "
- ..'<-"...,.... ... .. , .. ",'.4 :'.)-;:... ..._ ..
[Vol. 66
The Modern Law Review
justifications. Noris it interestedin whether the groupis regarded withdisrespect.
The composition ofgroups is determined by reference to the objective ofsocial
inclusion, which. can draw upon any system ofclassification. Examples of this
variety might include single parents (regardless ofsex) or residents in particular
postcodes thatinclude high levels ofminorityethnicexclusion.
",;'
Considering contemporary anti-discrimination legislation, there is certainly a
patternofthedefinitionofprotectedgroupsthatreflects anequalityjustification.;
Protectionis usuallyaffordedto botha group anditssymmetrical opposite, thus'
upholding a principle ofequal treatment. Thereare, however, someexceptionsto .
this pattern, as in thecase ofdisability;"married persons.V persons undergoing,
gender reassignment." These exceptions are compatible with a social exclusion
approach to the definition ofprotected groups. of
.

Nature ofdisadvantage,
An equality justification is also indeterminate with respect to the character of
problematic disadvantage. Ifthe aim of the law is conceived more precisely as '
equality ofopportunity, or ofresources,.or of,welfare. that add.itional element t
provides a more determinate description 01 the nature 01 the required ]
disadvantage, though the possible range of disadvantages to be considered t
remains broad. Disadvantages resulting from discrimination may occur in anyi
walk oflife. Forsthe purposes ofeliminating disadvantages that infringe somet
standard of equality, there is no reason to limit the potential scope of the i
disadvantages to be addressed even in the darkcorners ofthe private sphere. 39 r
Yet when discrimination laws areenacted. they addressparticular targets suchr
as employment. education, the provision of public services. and many othert
aspectsofbusinessand socialassociations. Firstamong these targets is invariablyf.-
access to employment. or, more precisely, theabilityto earna living through the t
provisionofservices to others. Whataccountsfor this focusonwork?Theanswer\
cannot be that discriminatory practices are more prevalent in emplovmcni thant
other social contexts. This hypothesis seems improbable. Considerations of
efficiency propelemployers to hire the most productive workers regardless ofsex!
or race. Direct or intentional discrimination in hiring practices is not usually ant
objective of employers, because it is likclv to be inefficient. Discrimination:
becomes efficient for employers only to the CXI"! that. hy l!',ing criteria ofgroup'
membershipas a proxy for a test for productivity 0, ,; Jobapplicant. the employer
saves on transaction costs (the co,te, ofil1\estigatl11)! the rclatr..' ;"0C
"
!c' ;'. ity of
jobapr}lcimts) suchan extent that thesaving,exceed the cu';\'. ofmistakenjob
offers. DISCrImInatIOll seems much more likely to nourish when the econonnc
consequences are insignificant. that is in daily social interactions.
'6 Disabrlity Discrimination Act 1995. '
)' SL'X Discrimination Ad \q75 .;: but EC Directive new Art 2(1) implic- .a
,IPP1\l;l\...h !"pr 'martial or hmil: :-lat\IS
_'\l\ :'r." ";,\tu, ;111:,'T:,1:...'d >\ 'vrv 1)1'-(!JI1:iT, :l ti il Il l(,'''::lld'.-'[ [C'd"
1".. IYY') SII'iY" \\02 '
1 lrcrc ,IlL' Odl,'[ [l',I"l!!, u;'lJlli the "1..'(1\1, 'Ifdi-dlll;il' lll'l] iu t\l,I' 1':i\;i1L'
1 (;,";11\('1. l\i'"l:L' "d \\! \L 1'- ,II' \1,:;
1,1\' '1' niL .111(1 I './\ ' , (" 'i 11:'
; 1\ .... 1' . ,I ' ! II: .
<January 2003J
Discriminat ion. Equality and Social Inclusion
Theemphasis upon employment in discrimination laws is all the more striking
whenwe appreciatethathiringdecisions by privateemployerscompriseoneofthe
hardesttargetsfor whichto justifylegalregulation. Ajustificatirn,for regulationis
easier within subsisting contractual relations, for the implied obligations ofthe
contract are likely to rule out most forms of discrimination. In employment
contracts, discriminatory decisions probablyamount to a breach ofthe implied
obligation on the employer not to act in a way that destroys mutual trust and
confidence(in the UK), ora violationofsomeothergeneralprivatelawprinciple
such as performance in good faith in the USA, France, and Germany. In
connection with hiring practices, however, a private employer can rely upon a
right to freedom of association or freedom of contract to resist any legal
regulation." In other contexts, such as the distribution of educational
opportunities by agencies of the state, this obstacle to regulation is absent. It
may be possible to arguethat the right to freedom of3ssoci:lIiondoes not include
the right to discriminate in hinng decisiolls.
42
hut employers will
assert that their freedom is helng unjustifiably invaded ill costly way. To
overcome that objection, it is nC'Cl',SJryto h.ive a powerfulargument forjustifying
regulation ofhiring: practices. such as respect for theright to equal treatment Or a
compelling distributive objective.
43
The reason why access to employment is the primary target ofdiscrimination
laws surely lies in the significance we attach to the distribution ofjobs in society.
The significance ofemployment is explained In part by its welfare effects. Since
most of us depend upon employment as our principle source of wealth. the
distribution ofjob, by employers is a key distributive mechanism in society. If
hiring practices in the labour market lead to unequal distributive ou tcorncs,
causing for example disproportionate levels of poverty among some minority
groups, egalitarian arguments might lead us to conclude that rc)!ul,ltini! hiring
practices should be the principal goal ofdiscrimination laws, Yet this distrihutiv..
argumentlacksan explanation ofwhy!l:e egalitarian goal should not be achieved
through taxation and welfare payments rather than through the regulation of
hiring decisions. What is required in addition is all explanation why the
distribution ofthe jobsthemselves matters,110t just the economic benefits flowing
from them.
Farlier it was argued that the notion ofsocial inclusion attuchc-, considerable'
signilkance to pos;e'SlOn of The problem ofs(Ju;,11 e\l'!w;i"ll [S ihld ',)Illl'
groups in d;"'11icd th,: (I) r":U"lh'ijl.dl' in
ofTered hy ".hie!: they m.r,: I'or1IL':r tir..
cOJlncction-; ofa l",11l11l1 uiutv. ;l1hl J -cn-,c uC-''>I.:I!'-rl:'r'1c'..'l. \\ 1-:1',)\ ici. nhl"L
people one ol the 1'Iillcrrdi l1led""'1,tn' l('l' C'''J'.Stl"lll:tllll' mc,tlling, Cl)I)III1UIII1\.
and status. Rcdisuiburivc ihl'llglJ L'l1t L"j" thl' III
eCOn0I111C hardshql. c.mnot tackL: except ;11 the Illar!'il), the prohlcm ,d' ""'Iill
eXclusion, Social I!'c'lll,inl) thu- ['!"Inides n argument Ie'\ Llr!'cltng I,;
employment as the primarvconcern of'disc mination b\L II cxpl.rin-,\\h.
toJobs should be Ih;; priucipa! l.i'g,'1 ,d' d "'rim:'Lcll"ll :.,,''-\ ..lh.: b,,.1 "k:'. I,,,
R \ 1'[1'["" i ...
{( :J n:i);: I \ !i
Fr\f
th<' I! ,-'
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J
J
The Modern Law Review Januan' 2003]
[Vol. 66
Discriminalion, Equality and Social Inclusion
againstsocialexclusion ishavingajob.andthe best to get ajob is to have a
structural disadvantage that it may be attempting to redress seems to be
,
t.
goodeducation,with the right trainingand experience.' Thisargument suggests
detemlined by the underlying equality justification for the law, The ideaI of
thatinthe selection ofthe natureofthedisadvantagesthatshouldbeaddressed by
equality respects the choices ofindividualsabouthow they should lead theirIives,
discrimination laws, the notion of social inclusion has played a role as all
but says the law should insist upon equal respect for thosechoices." Respect for
underlying justification for legal regulation in determining the types of
thosechoices meansthat the law shouldnot questionsocial normsinso far as they
disadvantage thatneed to be addressed.
J areconventions andpatternsproduced by the choice ofindividuals,48 Under this
I
equality justification, the prohibition against institutional discrimination should
Structures
concern only thoserules that, thoughformally neutral, have in their applicationa
disparateadverseimpacton certaingroupsasa resultof attributesofthosegroups
which they have not chosen.
d Inf I'" If'd Bot hfonnaI an mrorma msututiona arrangements 0 our society ten to "
maintain existing distributive patterns, even once direct discrimination is i
eliminated. For instance, the norma! role of child care performed by women f
putsthem at acompetitivedisadvantageinseeking betterjobs,whieh are typically ,
designed with hiring rules that favour work experience and set requirements of
long hours ofwork, This combination of formal institutional rules (the terms of
employment)and informal social norms(women takingprimary responsibility for
child care) results in a predictablepatternofexclusion ofwomen from tile better
jobs,asevidenced in thecontinuingdisparitybetweenaverageratesofpayfor men
and women, In order to address this type ofdistributive pattern. discrimination
laws were broadened to encompass the formal institutional rules, which. in
combination with informal social norms. have a discriminatory effect. Through ,
the tests of indirect discrimination or disparate impact, the law questions the t
validityofthe institutionalrules, thoughitleaves untouchedand unquestioned the
informal social norms. ,f'
Underthe tests ofindirect discrimination or disparateimpact that the law uses !
to tackle structural disadvantage. those who want to benefit from discrimination f'
laws haveto rely uponstereotypesorsocial normsthatthey may wish to escapeor t
reject." Forexample, a requirement offull-time work may be more difficult for
women to satisfy if they fulfil child-care responsibilities, In order to take f,
advantage of a remedy for indirect discrimination. a woman has to demonstrate '
that the institutional rule has the effect of disproportionately excluding women
from work, because they comply with the social nonn of fulfilling child-care
responsibilities. This reasoning is vulnerable to attack from those who wish to
reject the social stereotype and argue instead that women arc not necessarily the
partner who should take child-care responsibility ," that alternative methods of
child-care arc available, Thus III Clyrn.: v Wandswaul, T!", ,'ugh Council ..j" a rule
again"t jobsharing thc post of librari.m was held not to be UJ.;','riminatcsry ng.iin
women, becausetheclaimanthad had the choice to pay for Iull-n.u,,'niJ:j-l'are,As
soon as the court or tribunal denies or rejects the social stcrcotyp, in this
instance women typically stay ai home to take care ofyoung children the legal
challenge to institutional discrimination begins to fall apart. This paradoxical
reliance ofthe law on indirect discrimination on the persistence of patterns 01'
'fI';"'.""il.i h:.: ih.. : F'rimc t-,Lr,\,;!,,:-r', f:\i.']usi,',n t'11\\ ()jlle" 11/ \1]-,' Pruu,'
(;"F .\c. 111/ !(J-}."" }'l',I( 0/0\ Yr,.r ',,'J!.' .iI,', JII , I/J' .'1,'
('1l1--l-W';; ( he dd'..lrillC th.n "tile hl'.'1 >:.,LfcnJ.nJ -t'ill,'!,,! "'1',1,., I'
;--,11,1 ' '" (' ill j \ r:( I !
i!1 ... '
In contrast, owing to the paternalist and perfectionist clement in the goal of
social inclusion, choices made by excluded groups that have the effect of
reinforcing their exclusion are not choices that the goal necessarily respects, The
social norms and cOl1\'entions arc themselves a target for discrimination laws. if
theyhave the etfcct that the groupswho makesuch choices arc t hcrcbv nciuding
themselves (rom emplovment. Socii]! inclusion Ihu-, questions both the in,titu-
tion,ll rule and the su.:ial convcnuon In respect of the ','cial L'clll\cmi(lll th"t
womentcnd to rake care ofchildrcn. social inclusionchallcnges thisconvention to
extent that it results in women becoming soci:tlly excluded, Because the
composition of groups is determined by reference to the criterion of social
exclusion, the argument becomes that parents with young children who do not
work and are not supported financially by a partner in work should not be
permitted to follow the social norm of taking responsibility for childcare to the
extent ofexcluding themselves from the labour rnarket.?? Given the difficulty of
findingaffordablechild-care. parents need part-timejobs inorderto achieve
'well-being', ancedreflected in the newright to ask for changesin II'or!;ingtime,'(J
Theproblem with " hiring rule that precludesjobshanngfrom this pcrspccuve is
not that it diserilllrnates indirectly between men and women. hut that it l1bstrucls
peoplesuch as parentsofyoungchildrenwho needjobopportunitiestor part-tim-
work from entering the lahour market. For the purposesof indircc: discrimin., t ion
law.the implication of asocial inclusion ,;ustificatlOn IS that whether or not the
individual could have chosen to comply with the formal rule by departing from
socialconvention is irrelevant. because the aim is not equal or fair opportunity>
buttheelimination of rulesthat haleanexclusionaryeffect. Itshould hesufficient
1,.1 establish a claim for indirect discrimination to prove thai :Ill In,I:llili"l1al
practice ha, ih.u l>IreCl. It IS possible' t,l detect such Ii change' iI' the ilell kst f"l"
illdll"c'ct sex di'lTlminilllon in cmplUClilCnl. 'Ibe amelldcd S,'.\ [)isc,'illlri iii'l!1 !\lL
Ins ,ectionI12)JI') ,I,,,,,, """ J\Jrln,''- clcrucnt t h.u I"kcd '.liCii"," " "i"':-
lioll,;lC number ofwomen G\1l11lo[ cump)y l\ith the him]!! rule. "n,j a,k, lliUl'l\
whether the rule h:l' a detriment.r! cffect for a eomidembil Llri'L'r pr"j)(II'110Il ll[
IIO!l1CI/, thus aluiJIl,,, the ISSUC o( choice and social CUllYCnlIUn,"
Drawino tOQethn'tk,e oh,cl\;i1;un, dhout .',lruclur;,J di'a,h'IIPlar:,'. ".,,;j,ll
Inclusioncxplau, whvaecl'ss to employment IS a prim.u, tarl'cl for the ofT,:r,
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The Modern Law Review
a different and more determinate approach to defining the composition of
disadvantaged groups, and offers an alternative to the current law's reliance upon:
social norms in establishing claims for indirect discrimination. Clearly the aim of/
social inclusion does not provide a satisfactory explanation of all aspects of the'
law addressing structural disadvantage, but it does help to account for certain
features that are puzzling from the perspective of equality justifications.
Proving discrimination
An equality principle in anti-discrimination laws invariably requires a compara-j
tive approach to proof. In relation to sex discrimination, for instance, the law of
direct discrimination launches an enquiry as to whether the woman was treated
less favourably than a man. The comparative approach initiates a search for a
man or a. member of the majority group in similar circumstances, a search that
often proves fruitless unless one creates a hypothetical man. This legal!
construction IS often difficult to build. because a member of the majority or
privileged group is unlikely to have experienced structural disadvantages in a ;
similar way, so that it is hard to envisage how members of this group could find t
themselves in sufficiently similar circumstances for a fair comparison to be made, f
The law of indirect discrimination offers a route around this problem, tfiough it i
2OO3J
Discrimination, Equality and Social Inclusion
statistical comparison, whereas a substantive equality of results principle points to
the relevance of a broadly composed pool of comparison. usually consisting of the
labour market as a whole. In the case of a hiring condition such as a particular
educational qualification, for instance, the focus of the equal treatment principle is
on whether the condition disproportionately adversely affected a protected group
within the set of job applicants. The relevant statistical comparison under this
approach is the proportions between privileged group and disadvantaged group in
the pool of job applicants compared to the proportions in the pool of those
'employed. From the perspective of equality of results, however, the relevant
. statistical pool should be defined at least as those available in the labour market
who could satisfy all the requirements for the job apart from the disputed
educational qualification, It is the proportions between privileged and disadvan-
taged groups who can and who cannot satisfy the condition that serves as the
comparison for establishing indirect discrimination. ln respect of this difference
between the relevant statistical pools, it is possible to detect a contrast between the
courts in the USA. which favour the logic of equal trc.umcnt principle in the
selection of' statistical pools of comp:trison.S-l whereas. UK courts have more
commonly adopted' the logic of equality of results.i? This difference is obscured.
however, by the common problem of the unavailahility of the relevant statistics
such as the racial composition of job applicants.
retains the comparative approach to proof. It permits women and minorities to
As a distributive principle concerned with results, the aim of social inclusion
challenge an employer's hiring rules on the ground that the rules have a ;
supports the logic of selecting the broader pool of statistical comparison, The aim
disproportionate adverse impact on them. ;
of social inclusion is to eliminate exclusionary rules and practices regardless of
In contrast, the goal of social inclusion does not depend upon a comparison with,
whether they have in fact excluded job applicants in the past. Yet the statistical
a man or some other privileged group. The policy of social inclusion asks for proofI
pool favoured by social inclusion differs slightly from the broadest pool favoured
that the rule or practice tends to reinforce the exclusion of an individual member of ,.'
by the goal of equality of results, The social inclusion principle does not focus on
an excluded group or most members of the excluded group. A comparison can
the statistics for the labour market as a whole. unless the job concerned requires
supply evidence of exclusionary effect, but it is not essential to proof. For example, ,
minimal skills, because its concern is with those who possess the skills to benefit
if the employer's rule forbids part-time work. this rule reinforces the exclusion of
from the job or those who could acquire them with training,
any groups such as single parents that may require part-time jobs. Even if it isI:
demonstrated that other groups are similarly or equally adversely affected by the'
rule, the fact that this particular excluded group is disadvantaged by the
requirement is sufficient to provide a basis for a challenge to the rule.
It is evident that the formulations in current legislation reflect a comparative
approach to proof 01' discrimination that liuvs them to a notion of equality, '
Although the compar.uive upproach is not aIv, " reqi..red. as in the case of'
discrimination on grounds of' prcgnancy,S2 it is the dominant test. It is also worth:
nUling that although a notion of cqilalit ,' holds SWJY In relation to proof or
discrimination. the precise conception of cqualiiv that should b.: 'lprlied is often '
subjcc: to dispute. This di-putc emerges in connection With statistical comp.rr isons '
used to establish disparate impact or indirect discrimination, No doubt much of
the difficulty here can be attributed to a combination of thc lack of precise
st.uistical information combined with the complexity of the test. This test requires
;1 comp.uisou between the ratio-, of the priv'ileged ftrOllp to thc protected group in
tl\,' ,[;!t'slicl! pool," Th,' Cll\1:11 t"'::'\rlh'llt j1I'II1C1plc lends to confine the pools for
r\(o (,I"!!,I I A." fr/(".1.)l).111,!IljlJ('I{'-'().L('T
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As well as supporting the use of broader statistical pools for comparison. the
aim of social inclusion may throw light on two' other problems that emerge in
the comparative approach to proof. One difficulty concerns the interpretation
of statistical differences, The test for discrimination in EC law is not one of
statistical significance in a technical sense, but rather one that adopt, a formula
that there must he disac!l:l11tage to a 'substantially higher proportion' of thc
protected grn\Jp, 'f, The rUIliL' j'(,,,'d bv that lest is \1'111 it detr,lc!S frol1l thl'
commitmcnt to CljUUlll\, which ,hould require mcrclv ,\ t,'sl 1'1' stat istical
significance, ] h.rc lI1it) he' rr:lgm:ltic con,ic1cratio!1' at \I,ln)." here. ,uch <1, the'
unreliahility "I' Ihe thcl1lsclvcs, But an additi()/n[ cxplanatio n rlll
this slight de\ialion from thc cqua litv st.md.rrd may he th,lt the iL'gi';!:ltioll
implicitly acJ...nolVkdges that its distribur}, c .um has to be morc IOCUSSL'L! on rilles
Ihat havo a considcrnhlc cxclusiolJarv effect. and has 10 rcfritin from aSSl'SSllll'llts
of the merits of everv rule that produce-, results that de\'i:lte slightly from a normal
distribution
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[VoL 66
The Modern Law Review
A second problem that claims of indirect discrimination sometimes have to
confront is the exclusionary effect ofa combination ofrules, For example, an
employermay usetwohiringconditionssuchas a formaleducationalqualification
and a skill acquired through work experience, The approach to statistical'
comparisonundertheeoualityprinciplerequiresa comparisonbetweenthegroup
in thelabourmarketthatcancomplywithall therequirementsfor thejobandthe
group that can comply with those requirements except for the omission of a
\ disputedcriterionsuchas theformal educationalqualification, Theproblemmay'
arise that, although anyone hiring condition may not create a substantial
differencein the compositionofthecomparativepools, a combination oftwo or
moremayhave a significant exclusionaryeffect, There is a danger that under the
approach based on equality, an employer may be able to reject the inference of
indirectdiscrimination by insisting thateachhiringrequirement shouldbe viewed
in isolation, The.aim ofsocial inclusion explains why this method ofanalysis is
un:;atisfactory, Social exclusion is often the prodect ofa combination offactors,
a member ofa minority group in a particular l1c
it>hbllurhood,
A .uch as
disadvantaged groupis therefore oftenidentified in thcorics of s,1clalexclusion b)
more than one criterion, The aim ofsociz.l inclusion thus perhaps our'
intuition that the method of analysis that examines each hiring condition in
isolationis unsatisfactory,becauseit doesnotappreci-te themulti-facetedsources
ofdisadvantage in many instances,57
Directdiscrimination and a justification defence



In pursuit ofthe goal ofsocial inclusion, the elimination ofa strict compamtive t
approachtoproofofdiscriminationnecessitatestheintroductionof ajustificatIon,
defence for both direct and indirect discrimination, Under most current r
discrimination legislation, a general justification defence is restricted to indirect t
c1iscrimination, though narrower defences such as a genuine occupational;
qualification are available in some instances ofdirect discrimination, Thelimited I
availability of a justification defence to direct discrimination seems to bel
mandated by the equal treatment principle, By requiring consistent treatment, 'i
the equal treatment principle creates a strongpresumption against the possibility i
of justifying intentioned discriminatinn, Any excepl:Ol1S must he e,pl,iined hI '
referenc,? to some otlur import.u.t right. such as r. ,,'.,1. " :\'a,'\, ;'i :'1\
,....'trl'mcly light rcquJn:Illc'nt 01' neee"it) for Job pcrfonnar. In l",':llU< ::Ihie:
the of social inclusiuu. jusufications (or hiring ru:, :h: , c\
discriminate can tolerate a broader range of constderutious. p:')\IU, 1;':11 the
justifications arc compu..blc with the .nm "I' social in,:!u,i,," II 1\ h,,'lpfll! Ie
cX1Hnine one example ofa justification defence to direct dISn!llll!UIIlll1 111 t'IC:t!c,
depth, for it reveals how a discrimination law based upon Sl)Cli'\I'"'II1,,,"1 rarhe!
than equality approaches the task l'fdcfu.ing discrirninution
TIle example is thc Disabilil\ Discrimination ;\ct 1')'1: l nldl'l' III,)S:
1
ttt-. .. ];,'\...,. t]:' L'-,t I' ',).2 I in \111\ .\(" :1 \ ( ,'<,,'''"11,:
d thtll L'l)l!tFd."i" ihl..' ["C'.U!\ (l! );'lJ
'i\\l'L'l1 di"':lhk,; 1';,:\ .:','.: ,,'.,' i;1
January 2003] Discrimination, Equality and Social Iii' lusion
I
disability, For example, if an employer operates a hiring nile that recruits must

receive a satisfactory medical report, and a disabled person receives an
unfavourable report as result ofthe disability, theway in which the law analyses tt
the case is to say that disability discrimination has occurred unless the employer r
can demonstrate that the hiring rule is justified.i" Itis irrelevant that the hiring
h
rule applies equally to persons without a disability.i" and it is not necessary to
prove disparate impact. Once it is shown that the rule has excluded a disabled

;
person, the questionis notwhether therewas unequal treatment, butwhetherthe

rule is justified in the sense that the reason for the rule is both material to tile
r
circumstances ofthe particularcaseand substantial/"
Thisjustificationdefenceis furtherrefinedin section5(2)oftheAct,whichholds

the employer legally responsible for disability discrimination, if the employer
1{
cannotjustifya failuretomakereasonableadjustmentsto arrangementsthatplace
,
a11isabled person at a substantial disadvantage, Equal treatment ]S not good
enough, What the legislation requires is a dutv to treat disabled persons
differently, to make 'reasonable accommodati();lS',61 not to treat equally.
Althou;il the formal ju-rificauon defence underthe DDA appears [01111[>"'" ,I low
threshold,',e the real substance of the justification issue is to be discovered m the
question whether the employer has failed to make reasonable adjustment for the
person's disability, What amOUnLS to a reasonable adjustment is guided by
the statute and an elaborate Code ofPracticc.l" Ifan employer has complied with
the Code and considered all the possible adjustments that might be made for the
disabled person and only rejected those ones which it is reasonable to reject on
grounds ofexcessive cost, impossibility, and perhaps safety," the fipJi question of
whether in the particular circumstances ofthe case the hiring decision was justified
seems likely to impose only a low additional hurdle for employers, The important
question iswhetherall reasonableadjustmentswere considered,andhere the tribunals
encounter the acute difficulty ofbalancing the coststo the employer of assessing and
making adjustments against the exclusionary effects ofthe hiring rub,
Under thl' policyofsocial inclusionit becomespossible, therefore,10 recognise a
broad justification defence to direct discrimination. The core element of this
justification defence requires a demonstration that the objective ofthe rule serves
the goalofsocial inclusion,Thepotentia!width ofjustificationscan be illustrated
hythe facts and legal reasoning in James v Eastlcieh Borough Council. h' The
Council operated a rule that pcr-on-, ofstate pensionable age would be admined
Cor frc.. ,' 1(' the Council's lnlll1illg PC)o1. At that umc 1111.' \{"ttl' j'h:n'ljl,)l1Lll"'k ;!f-;:\...'
\\':.l:-. h{J ({'J ,ind (.5 for 111('11. Tlll' app!icltidl1 ill' 1hl'l rul,. ..\l lh,-d
\1r.Lun -. tt:;.cd ()l. t1;.lI d ihc l'ull hi ... \\,'L..' ,11'111<.' !\: .i
t
'-' ,;,ll';\:d
Ih,' pou ;,1 the ,'nncl'"ionary,r:tte, II' this rule I' ;\O,se"cd e\l'lu'l\ch I'n'!11 ihc
PcrSPCl't . c ",r ;t Cl'l11r:;r'lti'.e l'qllalit\ prjnciplc. it ""l'm' to b,' ilt; Ine'c:,pahlc
LUI/dOl! Borough oj llannncrxtnnh & F/(f/..,'uil v Fdl'JJSHorth 12t1uuJ rRI.R (191 I< -\ 1
)'! cu-: \ roc ltJ 1".\",,,,,Jid, [I JRLR C,\
(If) [YI:-,(!'I!)iir'"tllnll Act I'N:'s 'l',-' /\r<..k'll LJ ill 1'(I,lf (}!ff('( \ .111111" '\ 1"7
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The Modern LawReview [Vol. 66.;:";V');inuary20031
I
conclusion that'there is a difference in treatment between the sexes. 'But for'
MrJames'sex, he wouldhavebeen entitled to the reduced charge. Fromthe pers-
I pectiveofsocialinclusion, however, the analysis becomes morecomplex. We can
!
understand the Council's policy as one aimed at a group, persons of state
pensionableage, which finds it difficultto affordto takeadvantageofthe facilities
offered by the community. Ifthe reason for this exclusion is the cost, a more:
inclusiveoutcomecan be achievedby introducingadiscriminatorychargingrule in'
favour ofthatgroup. Althoughthe rule aboutconcessions incidentally violates a
strict principle ofequal treatment on the ground ofsex, the principle ofsocial
inclusionprovidesareasonfor dispensingwithanequaltreatmentrule inthis case,
because equal treatmentprovides an inaccurate or off-targetguide to the goal of');
achievingbettersocialinclusion.Socialinclusionpermitsunequaltreatmentifthat'
measure favours an excluded group. and the excluded group can be defined by
reference to the patternofsocial exclusion - persons ofstate pensionable age. In l
short,the rule isnot an unjustified rule from the perspectiveofsocialinclusionand
therefore the Council should probably not be held to be in breach of the legal i
obligation. A majority of the Judicial Committee, 110\\ever. upheld Mr James'
i
claim of sex discrimination, because the argument based on equal treatment was t
compelling. The temptation to introduce a qualification to the equal treatment
I principle for benignmotives was resisted, no doubt in partbecauseit afforded no t
I criterion ofwhat should count as a benign motive,andin partbecause the history f
ofdiscrimination against women has been replete withmen who acted with what
I
they regarded as benign. chivalrous, and considerate motives'i
!
Positive action 'f: '
Ourearlier review ofequalityjustifications for anti-discrimination laws noted the'
tension between any kind of different treatment based ).Iponthe characteristicsof ...
protected groups and the equal treatment principle. This tension has not entirely ..
precluded some forms ofpositive action, but any measures have been subject tol
'strict scrutiny' or a stringent test of'proportionality'. In the United Kingdom,
with the possible exception ofNorthern Ireland,66 positive.action with respect toJ.,
the allocation ofjobs by quotas or the like has been regarded as too great at
violation of the equal treatment principic.'" Om earlier theoretical discussion.
suggested that in order to override the equal treatment principle and to jusufy'
different treatment. what is required is a compellurg :];.umutivc justification
What kind of positive action does the distributive goal "I' social inclusion
mandate?
l
I
f 66 underTheFairEmploymentand Treatment (Northern Ireland)c>rcier14% 51 t9nNo 3162(1\J:
2\ l. the Equality Commix-ion III Northern Ireland is required to promote 'affirmative actior.
(article 7). which is defined as action designed to secure fair participation in employment by
members ofthe Protestant and Roman CathohcCommunity(article 4). Howcvcr, the mandator)
i
ordcr- that the Commissron ctircd towards employers are limited to mc.ivurcs rcvio;;e
pr;tl,ticl''' fOJ tuc PU1T'\"l'>I' or cqunluv of (Article 14) .\ i\1cC01p;1n
/)c\lTlnillii/tiofJ (t,lI i... CUI(', {.'ill! '!1/!C!"i(J!, (Ch(,lr<.lILlrt. 20(\()) )1') u: 1-1:-
h-
7
Ihe lnlriclCJL':-> and pcrhcq)\ incon"i",tclIC1L'"'l ()! th...' US !1lhltil)n arc the {If thl'-> 1.:'1:-,,1:
i
i
llK'r,,-' i-, J snul.u f':llkrnol d hlC'hh i"-"Iri,,:ti\..: III :\)':ll"l trllr
;1;:.11(\1 "'" ,I fl'r rd"t "h":111111'1,1\!<II1. .m.:
,,,';,\111\\ (\PI;:.,1;, tv.l.' ;df' /:,J;ioud,- ( .1" f '..;
Discrimination, Equality and Socia! Inclusion
Positive discrimination for the purpose of social inclusion requires that
employers should be sensitive to difference and make reasonable adjustments, in
order to enable members ofexcluded groups to overcome obstructions to their
obtaining work suitable for their skills and capability. This duty requires
employers to consider amongstmanythingshow the workplaceisorganised, how
jobs are structured, and how the skills and capabilities ofthe workers could be
improved, with a view to the reduction ofbarriers to employment for excluded
groups. We have already considered an example of such a duty of positive
discrimination in the duty to make reasonable accommodations under the
Disability Discrimination Act 1995.
68
Social inclusion does not, however, require the employer to adopt quotas to
eliminatestatisticaldiscrimination,asmightberequiredunderastrongegalitarian
approach. These quotas are unsatisfactory from the point of view of social
inclusion, both because they ignore the question whether the individual worker
canachieve 'well-being' from the job,and because they do not address the causes
of social exclusion."? II' the cause ofsocial exclusion is that applicants from a
particular excluded group lack the training to perform the job, the -ohuion lies
either in the provision of training or the reorganisation of work so that less
training is required for somepositions. Ifthe cause ofsocial exclusion is that the
hours of work render it difficult for the excluded grqup to conform. the solution
liesin a consideration ofwhether flexibilitv in hours could be introduced. This
duty to make reasonableadjustmentsin ofwork mieht apply to ourearlier
example ofjob-sharing the position of librarian.Y or to-the case ofa religious
minority for whom at a particular time is incompatible with required
religious observances.,t
Although at first sight this requirement for positive action mandated by the
social inclusion principle appears to be at odds with current discrimination law
that in general forbids different treatment. a closer inspection ofthe operation of
the law ofindirect discrimination reveals that it can approximate to the model
suggested by the aim of social inclusion. In a claim for indirect discnmination.
once the indirect discriminatory effect ofa hiring rule is revealed hy statistical
evidence. the employer must justify the rule on business grounds to avoid a
successful claim of discrimination. The Justification standard currently used in
cases ofindirect sex discrimination is under EC law a test of 72
which is similar to the 'busines-, ncccssitv test used in the Unncd Under
other CK II;,' te,t I' pct"klJl' i\ \"l'.l!.;,::- d
to b,d:lI1Cl' the (';('c,_'1 11...' IHle-
Di:<lhility DI.'-,LTilllln,tl1(111 :\ ... .: (1('7 1 l't\;[-;iL!.... m.-. Ll\\l',JLJ!-,!...: trc;lIl'hT'1
different rrc.umcnt I" L>II under 1] I\.' dut\ or fl'cl\;nT!:lbk ,ldjlJ<.,[lnCl1\ \l",
;!t Empl(lyf1]('lll \It - .'. \\hl(,:h in"",\-- t'lLit 'l,,'ljllll.\' rl!OT,'
Ill\..' \\<1)' hut 'rc.juirc., "'pc\..iaJ mc.:-, :tnJ
caoJustlfyquota-, in order((1 hrcach ... o....!dl(:(In\\'nt!()n:-- that ...'rCcl!l' lv.uricr.... t\'
Travait des v COJ1(}(]illJl National Raibl'or Co (1987]ISCIZ 1114, U{
CanadcI) .
69 There arc nlso rca-.on, It) he ,th,)!!! till' eCr..:-di\vJlC-,<.; (Il' 111,[11(1
prograrnmc\ in til,," 11,;')Jr \)( lh,' 1"lmrh,:lh'l' l-. ,-li)),1", II!'
DI';:lbk:d I,
U'/II/..,'I ( N!,c'/:) f l ' . :ul( ,11 I" 111,'111 l< ,1\" \'J'J 1,
in ell /}/O v 't/.I: I II ,')i 11' !,I
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The Modem Law Review [Vol.66
January 2003J
Discrimination. Equality andSocial Inclusion
the reasonable needs of the party imposing.the condition.i ' This justification
defence requires the employer to discover and reveal the potential costs of
eliminating the hiring rule in the same way that the duty of accommodation
functions as an 'information-forcing rule,.74 Then the courtmust balance those
costs to the employeragainst the exclusionary impact ofthe rule.
As Joilsarguesin the UScontext;"this processisclcselyanalogousto the duty
tomake reasonableadjustment, provided that thecourts do not permita trivial
costtotheemployerto countas a sufficientjustification,Ifthecourtsacceptboth'
thatanemployermay haveto incursomecoststo accommodateexcluded groups
and that those measures might involve reorganising the workplace, alteringjob j
content, and improvingtraining opportunities, a justification defence to indirect
discriminationpresentsa similarenquiryto that posed by the duty ofreasonable
adjustrnent." For example, in London Underground Ltd v Edwards (No 2),77
where an employer introduced a new shift system that compelled a single parent f
eventually to resign, the court found that the shift system, though serving the l
employer'sbusinessneeds, did not preventthe employer from accommodatingthe
nec.,js of single parents. As Morrison J observed in the Employment Appeal
Tribunal,'[Tjhercwas goodevidence thatLondonUndergroundcould have made f
arrangements which would not have been damaging to their business plans but t
which would have accommodated the reasonable demands oftheiremployees.'
Thesesimilarities betweenajustificationofindirectdiscrimination andthe duty of
reasonable adjustment appear more transparently under the EC test of t
proportionality. The key question under the test of proportionality is often f
'. whetherthe employer'sruleisnecessaryin the sense no otherrulewithlessadverse i
impacton the excluded groupwouldsatisfy thebusinessneedsofthe employer."
Arguments about justification in indirect discrimination claims amount to more J
than an individualised claim for adjustment, because the employer is required to
justify the adverse impact of the rule on an excluded class, not merely on a
particularjob applicant. The outcome ofthis legal process is in effect to require h
the employer to consider the possibility of affirmative action for a group. not in f
the sense of adopting quotas, but in the sense ofadjustments to the business to t
enable members ofthe excluded group to obtainemployment. f
Althoughtheseexamplesreveal the close parallelin reasoning between the kind .
ofpositiveaction required by the principleofsocialinclusionandthe operationof
the employer'Sjustificationdefence to claim ofindirect discrimination, the match
between the current law and the implications ofthe aim "f'oncia)i"L']u,ion j, not
exact, The central difference concerns the potential width I:\,tiiicatil>ils I'Oi'
indirectly discrimin.uor, rules Under the social inclusion principle. It .,11(,\lIJ be
73 f!ampStJ1! \' Dcpurtmc: Dlw'{il:::;; ulidS([('.'1(,(, ICR 179CA. Thi-,1C-"'\ ,tp\lf\ly(\1
described as an applicationof the EC test of propur tiona IiI) by Lurd Nicholls in burr:\
flunk I'll' [199J ICR859, HL 870, and by Sedley LJin Alionbvv Accrington an.l Ros-rnrla! ('ol!egc
[2001J ICR 1189 CA 1200. though there seems 10 he a cleardifference between a test "Inecc"lll
"..,rl '-l Tn..... '" j..."L,- " :,r"
7.:l P S. Karlen Discriminarion. and Rcasonulvlc An:ommndaulm'
(1'J%) 46 f)"k, LI\\'.I 1. 12
(. J\)\b, ,lll,J :\u-'.II''.l111Ud:lliCJ\l' CUnl} \ Ifill r n;I -r.
S Frcdrn.n.. ahn\c n HI,31b
- II I I K! r vr. Unl:in,\\ !10\)(1] C.\!. .1 I 1 I ,I
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possible to justify a rule with indirect discriminatory effects if the rule helps to
L' .,
reduce social exclusion. Thus the justification defence is not confined to business
b}
considerations such as cost, but can include the broader social objective of
pr..
reducing social exclusion, For example, in Northern Ireland, Where one effect ,.
of practices of religious discrimination has been a disproportionate level of
unemployment among the Catholic community, the legislation provides a

justification defence for hiring rules that give preference to unemployed persons,
even though such rules almost certainly discriminate indirectly against the .tit
4ii
Protestant community."? This special provision is required because under the
current anti-discrimination laws the employer can only justify indirectly
discriminatory rules by reference to business considerations rather than broader I
social objectives.

Asthis lastexamplereveals, not every [egaIexpressionofthe dutyofreasonable
adjustment confers a broad discretion on the courts. In some instances the
requirementsofre:I>ollableadjustment have beenclosely stipulatedbyPJr1i'lment.
For instance. maternity and parental leave rights, which impo,e :1 cost on
employer. to ndiust to thc need, of i1Ci" parents, have closclv defined parallleters
Ii
and entitlel11cnts. ( ' The further duty to accommodate parents' need for time off
work to deaI with family emergencies is more loosely defined by a standar.] of
rcasonablencssf" These 'family-friendly' measures can be regarded as a
determination of the requirement of reasonable adjustment for parents. with
their underlying goal being in part the reduction ofsocial eXclusion.
Priority not equality
t.
<
The preceding sketch ofthe architccturs ofanti-discrimination la\\'s based 011 a
t'
goal ofsocial inclusion has emphasised four features. First. the primary target of
D
social inclusion is the alloca.inr, of jobs to groups that suffer !,c,'sistent

disadvantage in the labour market. These groups can be identified by reference

,
,
to one or more citcri<:, none of which need refer to unalterable or 'status'
,
.
characteristics. Secondly, proofofdiscriminationshoulddependUPUI1 evidenceof (
disadvantage combinedwith membership ofone ofthe protectedgroups. without t
the further need to prove cornpa rauv- greater disadvantage than other c'IOUps.
Thirdly, dnti-discri1l1inatiol laws t hat pursue the goal of s()cial Illc!c:,i,'n 'hnllld.
however. pcrmn :1 broad justir'cauon dcCcr;c;e t(, both diIL'l' .rnel 1I1liJrc,'!
discrimin;"Il'Ii. l!l,w"h IhL'jll'IJ!icati,'n I11lht cuhcr l',',t IT''l1thl' ,'mh:" t ,
,oeia] e\L'!lhl'.", l" 1, ,i.d,!! th.it tile lblilmillaln)\ r ul;rLii\ C'C!Ul!c'i'i' [",'npk
who could :,,'11<1 ke:JIh ant aft'01...heemploymentopportuni t\, FI11:1 I;;, .thL' :C' 1:1I,)1
socialinell1,ir'l1lll:'nd:IL'" f,"nn "fpl)>\ti\'edL'lin!l th.i: c.m he de'll!kd.h"dut,
of rea,UI1;If1h: adju-uncru
My brief sketch of the feature, of :llltl-discrimlJ1i1tlon h,\\o ba,c'cj Uj1LJIl :1
principle of sn,i,11 i",'III'ioll hG<; not addre"ed many feal:lrc' ofthe current ,.J\\"
r \,1 J
1
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janUary 2003J Discrimination, Equality and Social Inclusion
[Vol.66
The Modern Law Review
appropriate remedial strategies that involve giving priority or preference to
and proposals to amend them. The discussion could be extended 'in many
excludedgroups. But does this concernwithpriorityratherthanequalityentail an
directions with suggestive results. For instance, the most recent innovations in
abandonment ofthe equal treatment principle?
discrimination laws, which have been described as 'fourth generation duties' ,82
Itis certainly compatible with the aim ofsocial inclusion to argue that equal
imposepositivedutieson publicsectorbodiesto takestepsto improveequality.83
Theofficialjustificationfor thesepositivedutiesisframed in termsofsomenotion
ofequality,suchasfair equalityofopportunityormoreequalresults.As Fredman
argues, however, 'an important dimension offourth generation equality laws is
their J:lotential to encourage participated groups in the decision-making process
itself,.84 There are many possibleexplanations for this emphasisupon participa-'",
tion by disadvantaged groups in determining the content ofpositive duties. A 'f:!
participatory process may contribute to democratic governance, a pointstressed
in European Union measures,85 or it may help minorities to express how their,
'difference' should be rcspected
8 6
But ideas ofequality do not seem to require ".
such an on participation of minorities in the formulation of public
policy. In contrast, the goal ofsocial inclusiondoes emphasise the contributionof
parti,:ipatioll in public life as a contribution to 'well-being', so this element in the
strategy of the development ofpositivedutiesfits into a social inclusionprinciple.
Duringthe courseofthis analysis, wehavecompared the equalityjustifIcations
for currentanti-discriminationlawswith the implicationsof thejustificationbased
upon social inclusion. In some respects, but by no means all, I have argued that
the social inclusionjustificationprovides a morecoherentexplanationofthe legal
framework. My argument is not that a social inclusion justification provides a
complete interpretation<if the currentlaws. Such a claim is implausible given the
influential role that the notion of equality has played in the construction ofthe
legislation. Where the potential influence ofsocial inclusion can be detected is .
rather in accounts ofwhen the law permits orrequires different treatment rather
thanequalor the same treatment.In short.socialinclusionprovidesagoal for the rt
legislation thatsupplies ajustificationin particularinstances for departures from
the general rule of equal treatment.
Returning to ourinitial lormulation ofthe problem ofidentifying the aims of
anti-discriminationlaws, socialinclusionoffersadistributi vegoalthatanswersthe
question when is it fair to require equal treatment and when is it fair to require:
different treatment. The answer is that deviations from equal treatment are <,
required in order to achieve the distributive aim of social inclusion. This aim
requires prderellCf'or priority to be given to member'ofa particulargroup, ifthe
c.m be' classiiied :1'; excludedThe'prefcrcio:iiln
p
.surcsrequiredare
those lhat will C1Jlllrihllle le' the reduction of <ocial cxcl usu-r;
The di,tributiH' aim of <oci.tl incfu-iou a\ oids any drrcct e<1i,ncctiun with a
di,;tributive goal tr.uncd 111 terms <11' cqualit\. It neither ,;ceksequalJt) of welfare
nor cquulity or ,'pportuniiy tlwu:;\1 11f cour-c a succcssrul policy of social
inclusion would make a ,(Klety more equal in both respects. The aim of SOCial
,
inclusion IS rathertoconstruc'laconceptionu(unfairncsin results,and to sugge"t
t
,:: II l!epple.!'v1. C"""") and I
'\\\1 i-, lrc-l.u...' Vi \.)q"
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tl!<,,'\"<.L,1 ';". j)
i n, ;"
1. para Ui , -- i
q, I I :llid TrcatJ11l'l1\ (Nllnh..:rn i
(:"",1 I, P.:\.\tk'tl"- \IHCIIi.:: ,:nli'\L'L ':-:H\{l
:r'l'v" 1\11(1 p!'L,pn:';l,;j me',hod... ,'1'1',\1 for thc
'll1"::':I" Ji.lI\:.. IJldu>,lJ\. Filii,; .',(,
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treatment shouldapply as the normal rule. Social exclusion is often the result of
unequal treatment, so that a requirement of equal treatment often serves to
address the problem. In the light ofour earlier discussion, however, does this
explanationofusing equaltreatmentas a rule ofthumbattributesufficientweight
to the principle in view of the force attached to it in anti-discrimination
legislation? I doubt that this explanation of the role of the equal treatment
principle could succeed, though my argument has never required that it should.
. The reason for introducing the aim ofsocial inclusion into the account of the
aims ofanti-discrimination legislationwasto find asolutionto the puzzle ofwhy
difTerenttreatmentwas sometimesrequired or permitted. My argumentwas thata
notion ofdistributive justice was needed for such an accou nt. Social inclusi on
provides such a theory ofdistributivejustice. one which is not so ambitious as to
cast doubt on maintaining equal treatment as the normal rule, but which also
explains when and why deviations from the normal rule should be required or
permitted. The continuing importance ofthe principle ofequal treatment as an
aim ofthe law is not abandoned as a result ofrecognising a distributive aim of
social inclusion. Even so, we still require an explanation ofwhy so much weight
seemsto be attached to the equal treatmentprinciple, such thatany deviation has
to becarefullyjustified under tests of proportionality and the like.
My surmiseis thatequal treatmenthas been accorded such importancein anti-
discrimination laws for two reasons. First, equal treatment is the normal rule
required by the separateprincipleofrespectfor individual dignityor equal worth.
We observed earlier that equal worth sometimes requires respect for difference,
but we should notignorehow it also supports in most instances a requirement of
equal treatment. This principle ofequal respect is expressed by article 14ofthe
European Convention for the Protection of Human Rights and Fundamental
Freedoms: 'Theenjoymentofthe rightsandfreedoms set forth inthis Convention
shall besecured without discrimination on any ground such as sex, race, colour,
language, religion, politicalor otheropinion, nationalor socialorigin, association
with a national minority. property, birth or otherstatus.' The independent value
ofrespect for individual dignity thus strengthens the \\eight to k attached (0 the
value of equal treatment.
Asecond reason whv eqUi,1 treatment h.i-. been c'llell sllc'h P;,JJl1lllell! ['(lk ill ,l
the legislation is that the principle ha, 1110\ idee! a d,'f1\iil.:':; cun,lil uuon a!
principle within Western systems. A legal '\SICIll. which ha, achieved
autonomy fr0111 the political and economic svstcm-. has it, illd':I
,,'r1lh'nt
dcmand-
ofIair process, ofevidence and proor. 01 remedial .icviccs. or lcg.tljusutication.
and, in general. ofpreservation or the integrity of !IS system.'
87 This (d
the analytical Irnmewor k or ill r'_'L);':l"'j { 11\.
((hford: !'i'j; - dr :!,-'lh::
condiuon, or _-"tIl lW C\J'; t ln , ,':;1 <II pl1:L,'
Hart, !J/lnn!lIIlClI! (0 1',1 ()'.! :d 'r.- ,
Icrmi:Jl)]nr\'Id 1'1 :'!)I.- :1
n tiL' dc.Tllcll1!,i '"' (', '
,jlli(,:i'lk,ll, 11];1-' ,1j
'i:l ( 1'1,'
\j
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The maxim-, or
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The Modem Law Review [Vol. 66

'equal protection of the laws' or 'treat like cases alike' represent fundamental
'or
,
operational principles of these legal systems. The significance of this legal
framework is that whenever political goals have to be incorporated into law,
;1
the legal system must accommodate them within its own operational principles.
Thepoliticalgoal behind anti-discriminationlegislation becomestranslatedin the f
operationsofthelegal system as a rule thatlike cases should be treated alike. In
otherwords, the legal system has its own independent values or communication
system,whichplaceconstraintsonhowpolitical goalscanbe pursued throughits
mechanisms, Whatever the political aim behind anti-discrimination legislation, j
whether it comprises equality of results, equality of opportunity, or social
inclusion, that aim has to be modified to comply with the principle ofequal
J
treatment in order for it to be accommodated with integrity within the legal
svstem.
J
.A combinationofthese two reasonsprobablyexplainssufficientlywhy theanti- ,
,
discrimination legislation attaches such great weight to the principle of equal
"
treatment. The significance attached to equal treatment by the principle ofequal
respect and the integrity ofthe legal system can provide an explanation lor why
the anti-discrimination laws depart from the architecture suggested by the
distributivegoal ofsocial inclusion. Forinstance, it was noted earlier thataimof t
social inclusion does notexplain whywhitemales should receive legal protection f
against discrimination, assuming that they arc not an excluded group, We can i
appreciate, however, that the symmetrical pattern ofmany discrimination laws
responds to the requirementsoftheprinciple ofequal worth and the demands of
integrity ofthe legal system.
Returning, finally, to the question posed at the outset- what are the aims of
anti-discrimination laws? - my argument suggests that as well as upholding the f
ideal ofrespect for the dignity ofindividuals orequal worth, the legislation also f
must be understood as pursuing a distributive aim in order to account for I
deviationsfrom theequaltreatmentprinciple. I haveargued, thoughcertainly not
conclusively,thatthisdistributiveaimorcriterionoffairness mav be discoveredin t
theaimofsocialinclusion. Althoughthecurrentlaw doesnotfit preciselywith the
principlessuggested by the aimofsocial inclusion, the match is closer than might
be initially supposed, and in several respects the aim ofsocial inclusion explains
features ofthe law that seem hard to account for by reference to other possible f
distributive aims such as equality ofopportunity. III r-articul.ir. the aim of social 1
ilH:iusion suggests a more dctcrmin.uc standard for'1,.-. '\ or positive
action th.m ,;" '.,f 'proportion.ility' or ',lIict Xfh...' I: Ihal
deviation, from equal treatment should be PLTI11itted \\1-,,". ,'! ""11[:'<101')'
measure is necessary to achieve the result ofsocial inclusion I", In,h5S of a
l!roup that arc presently largrlyexcluded,
Moreover,an appreciation oftheaim ofsocial inclusion m,,) ]1' ,1\Ilk,il1 Ithlght
into the reasons why we may have reservations about some asp.'':h ,;fthe current
LIW, For instance, remember .L'nu-, v Eastlcigh 110,,01lgh tounci), ihc case
concerningfree entry to a swimmingpool. Although the 111,1:"r1{\ "fIhl' HnUSl' of
; nrd",n-'gardc-d the prol-lcn: a siln!']e C:.l\C nfdirccl 'hut
i,q-' his sex .l.unc; ,J ii"l.:C \";'1,1.
" .Ioubt \\hc!h:! the "11"'. (11:,,'b\',' inL:!!,je-d !"ll '):,'. ,1.
..;""'>'I'it :':(, fl)[' '\-]11" ;1:
:iI .;:
,!"'" ;1
,January 2003]
Discrimination, Equality and Soda/ Inclusion
majority believed that ultimately the equal treatment principle provided an
exclusionaryrulethatpreventedanyjustificationof directdiscriminatioil, Theaim
ofsocial inclusionexplainswhythatquestionshould havebeen relevant, andwhy
a deviationfrom the equal treatmentrulemayhavebeenjustifiedIn this instance.
This exercise in examiningthe aimsoftheanti-discrimination laws in the light of
the idea ofsocial inclusion is not therefore merely an exercise in mapping, of
interpretation,orofrationalisation,butit isalso intendedas a criticalexploration
oftheassumptions and limitations ofthese laws.
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