chapter  5
30 Pages

The benign motive ‘defence’ and direct discrimination

ByMichael Connolly

This chapter focuses on the legislative definition of direct discrimination and an importunate insistence by some judges that a discriminatory motive is a necessary ingredient for liability. It also focuses on the Jewish Free School (JFS) case, and James v Eastleigh BC, which is set in the context of the rise and fall of the but for test. The JFS admissions policy gave preference to children recognised as Orthodox Jewish by the Office of the Chief Rabbi (OCR), which required that the child's mother be Jewish either by matrilineal descent or by conversion under the OCR doctrine. Unlike the House of Lords in the Birmingham City Council Jame, the majority in JFS rejected the benign motive defence without expressly relying on the but for test. The chapter concludes with the notion of discriminatory motive is based on a flawed statutory interpretation and an ignorance of the basic tenets of the symmetrical model of direct discrimination employed by the legislation.