ABSTRACT
Over the years of Britain’s membership of the European Community/Union, there have been many references to the ECJ to clarify the meaning of particular aspects of the discrimination provisions, with the Court generally giving a more liberal interpretation than the domestic courts had suggested would be their preference. Statistics reveal a racially unbalanced workforce, or gender pay gap; yet there is no evidence of any facially discriminatory cause. The discrimination Directives nowadays state that a defendant may ‘objectively justify’ a challenged practice by showing a legitimate aim, and that the means of achieving that aim are appropriate and necessary. The Bilka test distinguishes between aims and means. It seems that once an aim is considered ‘legitimate’ it is untouchable. The American ‘banding’ and Alternative Practice cases, in addition to Enderby, demonstrate that even marginal or subtle adjustments can make a significant impact in reducing discrimination, without damaging the employer’s business.
