ABSTRACT
Discrimination law is hampered in several ways by individuation, but in none so important as the restrictions on the scope of remedies. These may be backward looking (compensation) or forward looking (changes in discriminatory polices and practices). Because all members of the minority group will have been identically affected by the discrimination, it is reasonable that all such persons adequately qualified and shown to be affected be accorded the same remedy as the individual who won his particular case. In the United States, this is accomplished by means of the class action, but there is nothing magical about this particular procedural device: it is quite conceivable that the representative action could be adapted to achieve the same result. The practical consequence is that an American employer adjudged to have discriminated will face a large bill for compensation to all those within the law. It therefore often becomes cheaper and easier to obey the law: the employer is forced to bear the true cost of his illegality because its effect is fully taken into account rather than measured only in relation to the individual who has had the courage, persistence and patience to bring an action. This cost-maximising deterrence is not possible under English law and its absence, by making discrimination cheap, virtually ensures the ineffectiveness of the rights approach.
