ABSTRACT
Discrimination is not a static phenomenon. It is changeable, and adapts to new circumstances; under attack it becomes subtle, even elusive. Its resilience rests on the self-perpetuating nature of power and on the hard-wired implicit biases carried even by those of us who cognitively abhor discrimination. In law, indirect discrimination involves an apparently neutral practice or policy which puts members of a protected group (say, women) at a disproportionate disadvantage compared with members of a cognate group (say, men), and which fails to satisfy a means-end justification test. Indirect discrimination occurs when an act impacts members of a protected group disproportionately, in comparison with its cognate groups. The line between direct and indirect discrimination is famously blurred. Conceptual untidiness, on its own, may not be worrisome enough, especially for a practical discipline like law. Once it is established that a protected group has been disproportionately affected by the concerned act, prima facie indirect discrimination has been established.
