(2) Principles of Harm and Fairness : The next question is whether the focus on harm can also be used to explain why indirect discrimination is wrong. The task is harder here: for one thing, an employer may be liable for indirect discrimination without knowledge of the fact that such discrimination is occurring; for another, the inequality on which a claim of indirect discrimination is based may be the result of factors over which the individual

doi:10.4324/9781843145585-21

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ABSTRACT

Gardner, J, ‘Liberals and unlawful discrimination’ (1989) 9 OJLS 1, pp 10-11, 18-20:

Waldron [has argued that] ‘[I]n the case of indirect discrimination, the wrongness of the employers’ actions is nothing more than that they are not doing their bit to promote racial or sexual equality’ ... [T]he duty not to discriminate indirectly seems to be imposed on citizens in a way that is partly arbitrary from the point of view of relative advantage. Employers, in other words, seem to be required by the State to do more than that which is entailed by their ordinary share of collective responsibility for disadvantage ...