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

Published online by Cambridge University Press:  01 January 2025

Colin Campbell  and
Dale Smith
Colin Campbell
Affiliation:
Faculty of Law, Monash University
Dale Smith
Affiliation:
Melbourne Law School, University of Melbourne; Faculty of Law, Monash University
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Abstract

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

Type
Article
Information
Federal Law Review , Volume 43 , Issue 1 , March 2015 , pp. 91 - 118
Copyright
Copyright © 2015 The Australian National University

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Footnotes

We are grateful to Matthew Conaglen for very helpful comments on an earlier draft of this article. We are also very grateful to Sarah Holloway, Sam Szoke-Burke and David O'Loughlin for their excellent research assistance. Finally, we would like to thank two anonymous referees for their very helpful comments.

References

1 The classic example concerns discrimination on the basis of the complainant's pregnancy. Initially, claims of this sort could not be made out, on the basis that men were unable to become pregnant and so there was no available comparator: see Turley v Allders Department Stores Ltd [1980] ICR 66, 70 (Bristow J). Later courts found a comparator, but only by comparing the complainant to a sick male: see, for instance, Webb v EMO Air Cargo (UK) Ltd [1992] 2 All ER 43, 52 (Glidewell LJ). Interestingly, the UK has sought to eliminate the need to use a comparator in this context: see Equality Act 2010 (UK) c 15, s 18. By contrast, recent Australian case law seeks to characterise the comparator in gender neutral terms: see, eg, Thomson v Orica Australia Pty Ltd (2002) 116 IR 186, 2167. But there remain indications, in some cases, that the complainant is being compared to an employee who is sick: see, eg, Ho v Regulator Australia Pty Ltd [2004] FMCA (12 May 2004) 62, 74 [155] (though cf Howe v Qantas Airways Ltd (2004) 188 FLR 1, 62).

2 Consider, for example, an industry or workplace where the (non-managerial) employees are all female. It is often pointed out that this makes it difficult to find an actual comparator (see, eg, Fredman, Sandra, Discrimination Law (Clarendon Press, 2nd ed, 2011) 158.Google Scholar) However, a similar problem may arise with regard to hypothetical comparators. The very absence of male workers in the relevant workplace or industry, in anything like a comparable position, may make it difficult to determine how a hypothetical male comparator would have been treated.

3 Thus, it is often objected that the use of a comparator results in a female complainant's claim being assessed by reference to a male standard or norm: see, eg, MacKinnon, Catherine A, Feminism Unmodified: Discourses on Life and Law (Harvard University Press, 1987) 34.Google Scholar A similar point can be made with reference to, say, disability. It has been argued that there is a diverse range of abilities among different members of society, and disabled people should not be regarded as falling outside of that range. Indeed, it has been contended that a person is disabled only to the extent that society refuses to accommodate their abilities, while accommodating the abilities of other, differently abled people: see, eg, Fredman, above n 2, 172. Yet assessing the treatment that a disabled person has received by reference to the treatment accorded to a person who is not disabled treats the non-disabled person as the norm by reference to which the disabled person is judged.

4 Another possibility is to avoid using a general test of either less favourable or unfavourable treatment entirely, and instead to provide an exhaustive list of the actions which, if performed because of a protected attribute, will amount to unlawful discrimination. (Arguably, ss 342 and 351 of the Fair Work Act 2009 (Cth) establish such a scheme.) The merits and demerits of this approach fall outside the scope of this article; as we go on to explain in the text, our concern is with whether replacing a test of less favourable treatment with a test of unfavourable treatment eliminates the need to consider a comparator.

5 Pursuant to cl 19(1) of the Bill, a person discriminates against another person if the first person treats, or proposes to treat, the other person unfavourably (emphasis added).

6 Explanatory Notes, Human Rights and Anti-Discrimination Bill 2012 (Cth) 28. See also the Discrimination Law Experts Group, Submission to Attorney-General's Department, Consolidation of Commonwealth Anti-Discrimination Laws Project, 13 December 2011. The Group recommended the use of a test of unfavourable treatment (at 8), in order to remove the need to rely on a comparator (at 11).

7 Human Rights Law Centre, Delay on Stronger Anti-Discrimination Laws Met with Extreme Disappointment (20 March 2013) <http://www.hrlc.org.au/delay-on-stronger-anti-discrimination-laws-met-with-extreme-disappointment>; Law Council of Australia, Anti-Discrimination Laws <http://www.lawcouncil.asn.au/lawcouncil/index.php/current-issues/anti-discrimination>.

8 Interestingly, the ACT has had such a test since 1991: Discrimination Act 1991 (ACT) s 8(1)(a).

9 Section 8(1) of the Act states that [d]irect discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute (emphasis added).

10 Explanatory Memorandum, Equal Opportunity Bill 2010 (Vic) 1213.

11 Equality Act 2010 (UK) c 15, ss 13, 15, 1718.

12 See the explanation provided in Hepple, Bob, Equality: The New Legal Framework (Hart Publishing, 2011) 534, 734.Google Scholar As to why it was thought to be particularly important to remove the need to rely on a comparator in these contexts, see ibid, and Fredman, above n 2, 16974.

13 Acts Interpretation Act 1901 (Cth) s 15AA; Interpretation Act 1987 (NSW) s 33; Acts Interpretation Act 1954 (Qld) s 14A; Acts Interpretation Act 1915 (SA) s 22; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation of Legislation Act 1984 (Vic) s 35(a); Interpretation Act 1984 (WA) s 18.

14 Rodriguez v United States, 480 US 522, 5256 (1987), cited with approval in Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619, 633 [41]. See also Carr v WA (2007) 232 CLR 138, 1423 [5][7] (Gleeson CJ).

15 Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 592 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378, 38990 [25][26] (French CJ and Hayne J).

16 Human Rights and Anti-Discrimination Bill 2012 (Cth), cl 19(1) ('treats … the other person unfavourably); Equal Opportunity Act 2010 (Vic) s 8(1) ('treats … a person … unfavourably); Equality Act 2010 (UK) c 15, ss 15(1)(a) ('A treats B unfavourably), 17(2)(3) ('A treats her unfavourably), 18(2)(4) ('A treats her unfavourably).

17 This is true despite the statements in the explanatory notes and memoranda referred to above. Any use of those statements to ascertain the purpose of the Australian provisions must take account of the High Court jurisprudence concerning how statutory purpose is to be ascertained (and concerning the limits on the proper use of extrinsic materials). See above n 15, and also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 467 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

18 Our thinking on this issue has benefitted from reading Ekins, Richard, The Nature of Legislative Intent (Oxford University Press, 2012).CrossRefGoogle Scholar

19 (1996) 39 ALD 729, 7357 (Prezzi). See also Re ACT Health and Community Care Service and Discrimination Commissioner (1998) 53 ALD 779; J v Federal Capital Press of Australia Ltd [1999] ACTDT 2 (8 February 1999); Johnston v Dallarooma Pty Ltd [1999] ACTDT 8 (2 August 1999); Edgley v Federal Capital Press of Australia Pty Ltd (2001) 108 FCR 1; Ezzat v ACT Corrective Services [2001] ACTDT 2 (18 June 2001); Firestone v Australian National University [2009] ACTDT 1 (9 June 2009); Bell v DeCastella [2013] ACAT 27 (26 April 2013).

20 [2013] VSCA 28 (22 February 2013).

21 Ibid [46]. However, cf Slattery v Manningham City Council [2013] VCAT 1869 (30 October 2013) [45][53], where the tribunal held that the test of unfavourable treatment in the Equal Opportunity Act 2010 (Vic) does not require consideration of a comparator. See also Kuyken v Lay (2013) 240 IR 89.

22 There is a partial definition in cl 19(2) of the Human Rights and Anti-Discrimination Bill 2012 (Cth):

To avoid doubt, unfavourable treatment of the other person includes (but is not limited to) the following:

  • (a) harassing the other person;

  • (b) other conduct that offends, insults or intimidates the other person.

However, as we shall see shortly, the Explanatory Notes suggest that unfavourable treatment is to be understood as treatment that is detrimental. The Notes add that cl 19(2) is intended to make it clear that harassment and offensive, insulting and intimidating conduct amount to detrimental conduct. See Explanatory Notes, Human Rights and Anti-Discrimination Bill 2012 (Cth) 26.

23 Explanatory Notes, Human Rights and Anti-Discrimination Bill 2012 (Cth) 26. See also Discrimination Law Experts Group, above n 6, 11.

24 For example, s 5(1) of the Disability Discrimination Act 1995 (Cth) sets out what it is for A to (directly) discriminate against B, while Part 2 of the Act sets out the contexts in which discrimination is unlawful.

25 See, eg, Bonella v Wollongong City Council [2001] NSWADT 194 (29 November 2001); Vassallo v Jetswan Pty Ltd [2010] FMCA 708 (17 September 2010); Mulcahy v Minchinton [2012] FMCA 380 (4 May 2012).

26 See, eg, O'Callaghan v Loder [1983] 3 NSWLR 89; Leonard v Youth Hostels Association of Victoria (1995) EOC 92763; Varas v Fairfield City Council [2009] FCA 689 (25 June 2009).

27 See, eg, Prezzi (1996) 39 ALD 729; Edgley v Federal Capital Press of Australia Pty Ltd (2001) 108 FCR 1; Ezzat v ACT Corrective Services [2001] ACTDT 2 (18 June 2001); Bell v DeCastella [2013] ACAT 27 (26 April 2013); Slattery v Manningham City Council [2013] VCAT 1869 (30 October 2013).

28 (1996) 39 ALD 729.

29 Ibid 736.

30 Ibid. Cases that have followed Prezzi on this point include: J v Federal Capital Press of Australia Ltd [1999] ACTDT 2 (8 February 1999); Johnston v Dallarooma Pty Ltd [1999] ACTDT 8 (2 August 1999); Firestone v Australian National University [2009] ACTDT 1 (9 June 2009); Kuyken v Lay (2013) 240 IR 89.

31 For our purposes, an interest counts as comparative if, in order to ascertain whether the interest has been adversely affected, one needs to consider the position of people other than the person whose interest it is.

32 This is not to deny that Amrita could present the setback to her financial interests in a way that does make use of a comparator. For example, the fact that she has lost her job is likely to mean that she is in a financially disadvantaged position relative to her former co-workers (assuming that they retained their jobs). However, the point is that Amrita does not need to make use of a comparator in this way in order to show that there has been a setback to her interests.

33 As Matthew Conaglen pointed out to us, it might be contended that the setback to interests approach is concerned only with legally recognised interests and that the interest in maintaining a certain level of self-esteem is not legally recognised. We consider below whether the setback to interests approach is concerned only with legally recognised interests. In any case, there is some reason to think that the interest in maintaining a certain level of self-esteem is legally recognised. While it is unclear how one is to ascertain which interests are legally recognised, one possibility is that one should look to the matters in respect of which remedies are granted. In discrimination law, remedies are granted not only for financial loss, but also for hurt to feelings that occurs as a result of the discriminatory treatment: Alexander v Home Office [1988] 2 All ER 118, 122 (cited with approval in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, 256); Gilroy v Angelov (2000) 181 ALR 57, 76; Johanson v Blackledge (2001) 163 FLR 58, 84; Wattle v Kirkland (No 2) [2002] FMCA 135 (21 August 2002) [71]. We submit that compensating for hurt to feelings in this context is intimately connected to protecting complainants self-esteem, suggesting that the interest in maintaining a certain level of self-esteem may be a legally recognised interest: see Power v Aboriginal Hostels [2004] FMCA 452 (6 August 2004) [72][76].

34 Again, it may be that Amrita could, if she chose, rely on a comparator to establish that there has been a setback to her interest in maintaining a certain level of self-esteem. The point in the text is simply that Amrita need not rely on a comparator to establish a setback to this interest.

35 See, eg, Human Rights and Anti-Discrimination Bill 2012 (Cth) s 22; Equal Opportunity Act 2010 (Vic) pt 4.

36 We elaborate on the notion of justice in play here in Part V below, when we discuss John Gardner's view about the value underlying prohibitions on discrimination.

37 There may, however, be rare cases in which the only interests at stake are comparative, and hence in which reliance on a comparator is unavoidable. If so, this may represent a further problem with the setback to interests approach, in addition to the far more serious problem we discuss below.

38 It is true that the treatment accorded to the complainant may not always be to his or her ultimate detriment. For example, while a failure to employ a particular applicant will adversely affect his or her interests in some ways (financially and perhaps in terms of self-esteem), it may advance his or her interests in other ways. It may, for example, mean that he or she has more time to spend with his or her family, and this may, in some cases, outweigh the setback to his or her interests. However, the setback to interests approach is not concerned with this sort of overall balancing of interests. Clearly, where an employee is refused a promotion because of his or her race (for example), it would not be open to the alleged discriminator to argue that there has been no setback to the employee's interests because the employee is able to spend more time with his or her family.

39 The extent of the over-inclusiveness will depend on whether one adopts an objective or subjective account of interests. On the latter, a person's interests are fixed by reference to the things he or she desires; on the former, it is possible for something that a person desires not to be in his or her interests (and vice versa). In the text, we presuppose an objective account, but it is worth noting that the problem of over-inclusiveness is even more pressing on a subjective account. On a subjective account, all that would be needed for there to be unfavourable treatment is for the complainant to be treated in a way he or she desires not to be treated. This problem was noted by Senior Member Anforth when he said a person with a disability could consider themselves treated unfavourably for no other reason than they did not obtain what they wanted': D and Commissioner for Social Housing (Discrimination) [2010] ACAT 62 (1 October 2010) [99]. As we shall see, it is largely for this reason that Senior Member Anforth rejected the setback to interests approach in favour of the reasonable expectations approach discussed in Part IV.

40 This is a modified version of an example given by Senior Member Anforth in D and Commissioner for Social Housing (Discrimination) [2010] ACAT 62 (1 October 2010) [99].

41 As already mentioned, it is not clear how we are to ascertain which interests are recognised elsewhere in the law. However, financial interests would appear to be an especially likely candidate. After all, compensation is often awarded as a remedy in discrimination law, and in many other areas of law, for financial losses the complainant has sustained.

42 Someone might seek to avoid this conclusion by distinguishing between a setback to interests, on the one hand, and, on the other, a failure to advance interests. It could then be argued that, in the example we have provided, the refusal to grant Susan a raise is a failure to advance her interests, not a setback to her interests. However, it is not clear how this distinction can be drawn in a way that avoids obvious objections. For example, a failure to promote an employee (by reason of a protected attribute) is a paradigmatic example of direct discrimination in an employment context, and so would have to count as a setback to interests. But, if a failure to promote counts as a setback to interests, it is very difficult to see how a failure to provide a raise could, on any sort of principled basis, be treated differently.

43 [2010] ACAT 62 (1 October 2010).

44 Senior Member Anforth observed that If the logic in Prezzi is correct … a person with a disability could consider themselves treated unfavourably for no other reason than they did not obtain what they wanted': ibid [99]. This observation does, however, presuppose (in its reference to what they wanted) a subjective account of interests: cf above n 39.

45 Ibid [101].

46 We are grateful to an anonymous referee for suggesting this interpretation. Among its other virtues, it fits with the way that tests of reasonableness are understood in other areas of the law (eg tests of reasonable foreseeability in the tort of negligence).

47 As Senior Member Anforth notes, the reasonable expectations approach is, in a sense, comparative, since it involves comparing the treatment that the complainant actually received with the treatment that he or she could reasonably have expected to have received: D and Commissioner for Social Housing (Discrimination) [2010] ACAT 62 (1 October 2010) [101]. However, this appears to be a different sort of comparison from the one with which we are concerned namely, a comparison between how the complainant was treated and how a person without the complainant's protected attribute was, or would have been, treated.

48 Though recall our earlier point that the legislative purpose is not simply to eliminate the need to consider a comparator, but to do this by introducing a test of unfavourable treatment.

49 It might be thought that, while this approach avoids the over-inclusiveness problem, it is empty of content (since it effectively says that the test of unfavourable treatment is made out where there is good reason for it to be made out). However, the content comes from the particular account of the value that underlies prohibitions on discrimination. We consider three rival accounts of that value below.

50 We assume, for the sake of the example, that the length of the sentence is proportionate to the seriousness of the offending, and that the offence itself is not objectionable (cf, for example, laws which criminalise homosexuality).

51 Recall that a person may suffer a setback to their interests even if they benefit in some ways from the treatment in question: see above n 38. Thus, even if one believes that a person may benefit from being sent to jail (because they will have the opportunity to be rehabilitated), being sent to jail clearly involves a setback to their interests (eg because it involves a deprivation of their liberty).

52 Though again recall our earlier point that the legislative purpose is not simply to eliminate the need to consider a comparator but to do this by introducing a test of unfavourable treatment.

53 Gardner, John, Discrimination as Injustice (1996) 16 Oxford Journal of Legal Studies 353, 353.CrossRefGoogle Scholar

54 In presenting Gardner's views, we focus on Discrimination as Injustice', which presents his most developed position with regard to why discrimination is wrong. In this piece, he also carefully distinguishes the question of why discrimination is wrong from the further question of why the State is entitled to intervene to redress that wrong. Our concern is with the former question, whereas Gardner's later work on the role that autonomy plays in discrimination law is primarily concerned with the latter question: see, eg, Gardner, John, On the Ground of Her Sex(uality) (1998) 18 Oxford Journal of Legal Studies 167.CrossRefGoogle Scholar

55 Gardner, Discrimination as Injustice', above n 53, 355.

56 Ibid 3556.

57 Ibid 355.

58 Ibid.

59 Ibid 367.

60 Ibid 353.

61 Ibid 355 (emphasis added). See also ibid ('comparisons between people are of the essence in defining anti-discrimination law's primary duties).

62 Gardner's account is by no means the only account of the value underlying prohibitions on discrimination that has the implication that reliance on a comparator is essential to ascertaining whether there is direct discrimination. Other examples include Hellman, Deborah, When is Discrimination Wrong? (Harvard University Press, 2008)Google Scholar and Shin, Patrick, The Substantive Principle of Equal Treatment (2009) 15 Legal Theory 149.CrossRefGoogle Scholar (But see Moreau, Sophia, In Defense of a Liberty-based Account of Discrimination in Hellman, Deborah and Moreau, Sophia (eds), Philosophical Foundations of Discrimination Law (Oxford University Press, 2013) 71, 75.CrossRefGoogle Scholar Moreau contests Hellman's claim that Hellman's theory is comparative in the relevant sense.)

63 Fredman, above n 2, 25.

64 Ibid 2533.

65 Ibid 22.

66 Ibid 16.

67 Ibid 25.

68 Ibid 26.

69 Fredman regards the adoption of a test of unfavourable treatment in the context of discrimination on the ground of pregnancy, under the Equality Act 2010 (UK), as eliminating the need to rely on a comparator: ibid 170. However, she does not indicate the basis on which she reaches this conclusion. It is possible that she is presupposing something like the setback to interests approach, despite the problem with that approach identified in Part III above. If this were so, her conclusion would have no bearing on the question of whether adopting a test of unfavourable treatment removes the need to rely on a comparator where that test is understood in light of the value-based approach.

70 Ibid 176.

71 Ibid 177 (emphasis added). It should be noted that, immediately after making this stronger claim, Fredman appears to retreat from it, stating that the symmetry underlying direct discrimination makes it difficult to advance the redistributive dimension (emphasis added).

72 Ibid 26.

73 Ibid 27.

74 Ibid.

75 Ibid 26.

76 In this connection, see Goldberg's suggestion that employing a comparator should be one strategy among several for determining whether there has been discrimination, and that the difficulties involved in using a comparator would be reduced if this suggestion were to be adopted: Goldberg, Suzanne B, Discrimination by Comparison (2011) 120 Yale Law Journal 728, 8089.Google Scholar It is also worth noting that Fredman appears to adopt an analogous stance towards the recognition dimension, stating that locating dignity as one dimension of a multi-faceted notion of equality permits us to buttress it in such a way as to utilise its strengths while addressing its weaknesses': Fredman, above n 2, 29.

77 Moreau, Sophia, What is Discrimination? (2010) 38 Philosophy and Public Affairs 143, 147CrossRefGoogle Scholar (emphasis in original). (This article contains the fullest exposition of Moreau's position, but see also Moreau, above n 62.)

78 Moreau, above n 77, 147.

79 On Moreau's account, gender and race are not the only normatively extraneous traits. Many, perhaps all, of the standard protected attributes will be normatively extraneous, as may be further traits, such as physical appearance: ibid 1578. However, for ease of exposition, we will use race and gender as our examples in this part of the paper.

80 Ibid 149. Moreau emphasizes that one's race or gender may be an important part of one's self-identity and so one may wish to take into account one's race or gender when making a broad range of decisions. Her point is that one should not have to take account of such matters; they should not be costs attaching to particular choices that one might make.

81 Moreau denies that discrimination law is concerned only with important choices. On her view, we should also be able to choose to which restaurant to go, free from any pressure arising from our normatively extraneous features: ibid 152.

82 Ibid 147, 155.

83 Ibid 160.

84 Ibid 174.

85 Ibid 155 (emphasis in original).

86 The statement in the text may require qualification. The use of a comparator is not an essential feature of Moreau's account, but that account seeks to capture only the personal wrong committed by a discriminator against the complainant: ibid 1456. Moreau allows that, in addition to this personal wrong, there may also be harms or injustices … suffered by each of the groups marked out by grounds of discrimination (at 178). She further allows that some discrimination laws may be designed not only to address the personal wrong to individual complainants, but also to rectify injustices suffered by these groups (at 178). If this is true of prohibitions on direct discrimination, then a comparator may have an essential role to play in the context of such prohibitions after all (on the plausible assumption that the identification of injustices suffered by certain groups requires a comparison between the treatment accorded to members of those groups and the treatment accorded to members of advantaged groups). However, since Moreau does not offer a considered view as to whether prohibitions on direct discrimination have this additional aim, we shall leave the possibility to one side.

87 See the text accompanying above n 84.

88 This interpretation appears to be confirmed by Moreau, above n 62, 74.

89 Moreau, above n 77, 174.

90 Similarly, on Fredman's account, to the extent that direct discrimination is concerned with the redistributive dimension of equality, consideration of a comparator is essential, not merely a useful piece of evidence.

91 See, eg, Stefan Gosepath, Equality (8 February 2011) The Stanford Encyclopedia of Philosophy (Spring 2011 Edition) <http://plato.stanford.edu/archives/spr2011/entries/equality/>.

92 In this respect, see Raz, Joseph, The Morality of Freedom (Clarendon Press, 1986)Google Scholar ch 9 (arguing that equality is often used to refer to principles that achieve equal treatment simply as a by-product of the general application of those principles).

93 In this respect, it is worth noting that Moreau's account may support a somewhat different list of attributes from those typically protected in discrimination law: see above n 79.

94 See Gardner, Discrimination as Injustice', above n 53, 355; Fredman, above n 2, 1812; Moreau, above n 77, 155.