chapter  8
56 Pages

Problems with indirect discrimination

ByMichael Connolly

This chapter explores four aspects of law: the defendant's facially neutral requirement; the disadvantage required; the comparison required; and the nature of the causative element: proving the reason why the group was disadvantaged by the defendant's facially neutral practice. With the Perera problem, the Court of Appeal could not marry the legislative text with its purpose. Most of the Court of Appeal cases (Perera, Meer, Mandla, Essop, and Naeem) continue the underlying theme that discrimination law's purpose is confined to providing remedies to individual victims against wrongdoers, which is rooted in the common law's binary approach of resolving disputes between two individuals. A particular feature of these cases is that they ranged from 1983 to 2015. The chapter considers familiar themes of prolixity, poor statutory interpretation, and a lack of a full appreciation of the basic tenets of discrimination law. Indirect discrimination law is group-based and effect-based, and is most closely tied to substantive equality.