..

~hUary 2003J Discrimination, Equality and Social Inclusion

permitted, if it causes unjustifiable 'indirect discrimination' or 'disparate impact'." Here formal equal treatment becomes unlawful where a rule or practice

Discrimination, Equality and Social Inclusion disproportionately operates to the disadvantage of one of the protected groups, and the rule or practice cannot be objectively justified. A third kind of deviation

Hugh csuu« permits preferential treatment for protected groups in certain circumstances, in order to redress a prior history of disadvantage. The exact scope of permitted

'positive discrimination is deeply controversial, no doubt because it is perceived as Although laws against discrimination have conventionally been justified and conflicting sharply with the equal treatment principle," These three deviations articulated according to various conceptions ofequality, tensions between different

notions of equality undermine the coherence of these explanations. The aim of reveal that we cannot understand the aim of anti-discrimination laws by reference . toa straightforward equal treatment principle. The question becomes how can wesocial inclusion is proposed as part ofan alternative justification for discrimination account for the law in a way that both recognises the force of the equal treatmentlaws. As well as exploring the meaning and implications of the policy of social

inclusion for discrimination laws, the extent to which the law already embodies this principle and acknowledges its deficiencies as a complete explanation of the aims idea is assessed with particular reference to the scope of anti-discrimination laws. of the law? ,proof of discrimination, j11stificatioll defences, and positive discrimination. It is Conventional accounts of the aim of anti-discrimination laws try to answer that11:-,,concluded that the goal ()( social inclusion has the potential 10 provide a vital ingrediC'l1t ill'a more coherent, though not uncritical, account of the aims of anti- r discrimination legislation.

{",The aim of equality e. j

What is the general aim of anti-discrimination laws? At first sight, legislation in i'

the European Union and the United States advances a conception of equality as f

its general aim. Indeed, anti-discrimination laws have often been dubbed 'equalityI tI laws".' The central case of prohibited conduct is less fav'ourable treatment ofj another person on grounds of ~or because of) their race, sex, or one of the otherI protected group classifications. This standard insists upon equal treatment to the i

extent that people should be assessed without regard to certain characteristics such as sex and race that have often been a source of disadvantage in the past. Equal treatment demands impartiality in the sense of forbidding criteria such as sex or i

frace from providing grounds for differentiation.' Yet the aim of anti-discrimina­f

tion laws cannot be reduced to equal treatment. f A closer inspection of the legislation reveals three kinds of deviations from a

simple equal treatment principle. In some cases, different rather than the same t treatment is required. In the case of discrimination against pregnant women, for instance. the law mandates different treatment of \I omen rather than the same treatment a, men.-1 Similarly. different treatment of di",,:"cd per' .ins is required in m.uiv rcspccb. In order to enable them to gain acccs- Ic' work and other opportunities.' In a second type of deviation. equal treatmcLl i, itscl! not

.., L~tW Dl~partm('nt, London Sch 101 of Economcs. Th.mk» ~tH: (J\\ cJ to many who commented on earner drafts of this essay. especially Oonagh Reitmann. Richard Nobles, and Nicola Lacey.

S. Fredman, 'Equality: A New Generation? (2001) 30 ILl 1"5: C. McCrudden, 'The Effectiveness of European Equalnj Law: National Mechanisms for Enfc,rcin~ Gender Equality Law in the Light of hlf"rCan Requirements' (199:1) 1:1 OJLS :120; B Hopple. M. Cous,e" and T Choudhury.

:1 SI'\\ Frall1(~\·(irk. Report of the Independent RCVIC\\ of the Enfor(~IllCilt oftiK Anti-I ;""111,'1>";; J lthford Ibrt. :'1I()(j1

_ It: 1:( l)~l<,-!l\t' 7~, An ~ 2\::) ('j\il RI'-.:hl') A,-:l !LJ(1·L "TJlk' VII. ~2 l'Se" :1){I(k-:..'Llj{l,I.~~.. 1_ Y('~II:~:. JII-'I((' (lfll! t/II' Polu», "f 1):ff('~-(l7c(, rPmu-vtou Pr-m.vton t

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question by using another conception of equality, one that furthers a substantive or distributive goal. Deviations from equal treatment are justified by reference to the pursuit of goals such as equality of results, equality of resources, or equality of opportunity, For example, it is argued that permitting claims for 'indirect discrimination' or 'disparate impact' serves the purpose of reducing institutional barriers to the achievement of a distributive goal such as more equality in results or fairer equality of opportunity' Similarly, in European law the permitted scope for positive discrimination is determined in part by reference to a substantive conception of equality: 'With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to [sex, race, etc.] ... ,9 Although the precise conception of substantive equality remains ambiguous in such formulations, it certainly seems possible to justify deviations from the equal treatment principle by reference to some distributive conception of equality. The problem for justifying the aims of anti-discrimination laws becomes rather to restrain or confine the force of a substantive conception of equality.

This problem arises because there is always a tension between the equal treatment principle and substantive conceptions of equality. Because equal treatment determines a procedure rather than an outcome, equal treatment can always be challenged as obstructing the achievement of a particular outcome. This tension is most obvious with respect to a strong egalitarian version of equality. If the aim of the legislation is perceived to be strict equality of OU[lOIl1C:';. any rule or practice including equal treatment that prevents the achicvcmcu i of .u: cgnlit.uiur.

, 6 Eg EC Directive 200078, Art 2.2(6); Ci\il Rights Acl !"I," .. T!~k VII, '12 LSC s 2()UU(~2(J)(2! .m.l

lk) 7 M. B. Abram, 'Affirmative Action: Fall Shakers and Social Engineers' (19S6) 99 Hnr vur.l Lou

Review 1312. This conflict was the conceptual framework within which US consuunion.u law addressed the issue of reverse discrimination: Regents (~f Univcrsity of Caliiornio v Bakke, 4l~ l (S 265,90 S Ct 2733 (1978) (Supreme Ct US).

8 C. Mct ruddc», 'Changing Noti.vn« of Dhcrimlnalioll' ill S. Gucvt and .\. !\1i1nc Icuv]. F'.(/IIU!tI!" ..mil Discrinnnation Essav. rn Fit",jon,' .a.d Luvtn c -\R'.P YI'! ~l (Stull:..'..,:-: I rant' ~JfC!nl'r. Iqi"'~J

\6: J. Gardner. 'Liberals-and L'nluwlul l n-cnmination (19Sl) 1 l} O.lIS"1 The varil't', 01 distnburivc s('l1"es or equality found in th' l.iv i': l'\I'I\~rcd ;1~ S lrcdm.u.. fJI,(! ­(Oxford: Oxford UnIVI".·[Slt~ Pre .... ". 2(11)]) (h,IP!Ct !: ( ll;lllul'd <.Ill" H i kppk, FqlJ<1lit\' 12lJOtlj -iq Cl J .~()2

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The Modern Law Review [Vol. 66 January 2003] Discrimination, Equality and Social Inclusion ,

outcome must be questioned, For example, if the egalitarian outcome is defined as defining a goal that less frequently requires deviation from the equal treatment an equal distribution of jobs between men and women, any rule or practice that principle is plainly a step towards a better resolution of the problem, Nevertheless,obstructs that goal would have to be challenged, including an equal treatment this route can never be entirely successful. If the narrow distributive aim has anyprinciple that insists that men and women should be assessed on their merits, J substantive content at all, it must at some point come into tension with a disregarding their sex. But the same problem arises in connection with any procedural rule that is blind to outcomes. substantive conception of equality, including the apparently less ambitious goals of equality of opportunity and equality of resoui-es. Whenever the legislation seeks a particular substantive outcome that concerns a distribution of advantages among social groups, a procedural rule that forbids consideration of membership of groups as a relevant criterion for decisions must obstruct the pursuit of that goal.

Courts have to resolve this tension between the equal treatment principle and substantive conceptions of equality in particular instances. The predominant method in Europe is to use a test of 'proportionality'. 10 In the United States, courts apply the-equivalent test of 'strict scrutiny'."! The gist of these tc<';'" is that specific measures designed to achieve substantive equality must not he disproportionate violations of the equal treatment principle. Although this formulation provides a tool for judicial examination of the issue, it does not resolve the tension between the equal treatment principle and substantive conceptions of equality. The more a specific measure is likely to achieve the desired substantive equality, the greater will be the tension with the equal treatment principle, and the harder it will be to justify under the test of proportionality. A court has to produce fine distinctions between measures that represent only minor and ~ecessary deviations from the equal treatment principle and measures, that go too far in the pursuit of a desired egalitarian outcome. Wherever the line is drawn, a decision can always be criticised as displaying either a slavish adherence to the equal treatment principle 01 a dangerous sacrifice of the principle. The, tension remains between, on the one hand, an aim of ensuring equal treatment for ,'Ill citizens regardless of certain characteristics such as sex and race, and on the other hand, an aim of achieving a more equal distribution of welfare or resources among 111 citizens that may require in some instances different treatment on the grounds of those same characteristics.

Many possible routes have been proposed as providing a better reconciliation of the tension between the equal treatment principle and substantive conceptions of equality" Here I do not want to enter into the details of these proposals. except to draw out of them a sense of the strategic choices that c.r he made and kSSU;1S th~~(

mav be learned from following various paths. :)::c: route for ..resolving the tension I' to seek ~\ 'llh,tall1:"." ,!('licepli,.»1 of

cqualitv that is sufficiently limited thin It rarely. if ever. l'Ja,he'S \1 It:' '11C lqUld

treatment principle, The idea of 'equality of opportunity' provides an cxalllI)k ue this approach. Leaving aside the indeterminacy or this notion. the stratcg> ,d'

II) Abrahamsson & Anderson \' Fogetqvist C- 407 n [2000J Eel{ 1-5534. [2002J IeI' ~.12: Arp!J(<Ilion b v Badcck, C-15X;n [2(00) Eel{ I-IS75, [2000J lRLR 432: I.onnnc.» v .lflni"I,',. ":111 Ltnullvoi:» Sall/lIrhe!Jf'cr En Visscri] C-476 99 [2002] IRLR 4.1fL S Frcclm.in. f)i\'crill1lno f / ( JN IJJ:\' (O.\fdrd ()xf'ord Lnivcrslt)' Pres", :()()~) 13(1 14.~. The-e C,hC"') dr,cu;-.\ t hr- :tjlj1lic;!tl\'il; ,Ii t h,. '.. u hcr i ;L•. .:

j 1'~"'l'11Cl1t l)lfV,,-'li\;..' Itl ~1!7 \rl .)/4), \\hIL'IJ >- !J\lll:l,d (:) d!",_:i'~ ' Jl!ll'r-'~'i1t \\()rdll"~~ ('! [11,..:­ i~f'cqu,l1 lnUtl!t~' III ~I ii,' "CI,

to 1-,~' u-:«! conk',: u! l'r,,)! 'i'~,' \~ •• )) I, 1"' ~-r\L::" ;l~![ :,<, 1; .. ' ',1 l1:uh(I(1[

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A second strategy consists in confining the strict application of the equal treatment principle to certain distrihutive allocations. For example, it might be proposed that equal treatment should be rigorously observed in hiring decisions, but with respect to training and other 'outreach' measures, equal treatment should be sacrificed in the pursuit of a substantive goal such as fair equality of opportunity. The problem that this strategy encounters is to explain the principle on which the division of distributive allocations should be drawn. In practice, the law does not seek to draw such a division, but rather applies the equal treatment principle across the board, The legal question remains whether the departure from equal treatment in the allocation of training and other benefits represents a disproportionate violation of the equal treatment principle. For example. legislation in thc United Kingdom permits employers and trainin<; oodles to grant prcfcremiat :lCCS5 to training to a particular racial group, but only if there are either no members of the racial group doing the work for which training is supplied, or their proportion is comparatively small.'? Similarly, in a case concerning an employer's child-care facility reserved exclusively for women employees, the European Court of Justice concluded that the employer's measure failed the test of proportionality, because it excluded male employees who take care of children by themselves. I) The strategy of isolating some distributive decisions from the application of the equal treatment principle, though possible in theory, appears to be unacceptable in practice owing to the force of the equal treatment ideal.

A third strategy for resolving the tension tries to dispense with the equal treatment principle altogether by redefining it as 'equal worth', 'equal respect'. or 'treatment as an equal';" Under these formulations, different treatment in the pursuit of a distributive goal is unobjectionable provided that it does not involve disrespect for any group, Indeed, equal respect, particularlv when formulated as a claim for recognition and empowerment of an identity,!" may require different treatment, because respect (or recognition or cultural empowerment) may involve accepting and accommodating differenc-!" Although this strategy dl'oids the tension we have been considering. it achieves this result only by di'l'arc!lng the cqua] treatment principle A white m.ii; :ll the rCl'cI\ing end (If :td\l'r'e trc.uu.cut :irlsini' I"on! ,'11 aflirmatl\c ;;cli,)!] quota call pcrhaj», accept ;);:JI 111' tr,',lfTllcnt In;-lY not involve bud motive- or d;.,jl..'-.;r':'-'l"l, hltt it L'er!~,i;ll:\ Ill\'i1l\ ',,., U!L.:y'.:;1l

trcaliliC"ll. p~I!liJJ treatment ~r djffer'cnttrc~ltmclllon the b:l'I' nf[!ciltlc:r o r racc. f[h right III hc' Ilcalcl! with respcct ;l~d dignity m~lY not have bcr n !lIfrrnl'c',L hIt j,,, (,[hcr ri,dll 10 l'y",,1 treatment has been plainly violated. Radical 1'()iL'l', III

falOlll' or tllyehily may 110t he cOl1,'crned about tll, abandonment of an equal treatmcnt principle, because of us tendency to impose a hC,l'eI110nlC white. mule.

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The Modern Law Review January 2003][Vol. 66 , Discrimination, Equality and Social Inclusion

heterosexual norm. Yet anti-discrimination laws in their definitions of direct discrimination and the application of the test of proportionality io practice insist , upon a process involving equal treatment, not merely equal respect. If we accept f that an equal treatment principle will remain at the core of anti-discrimination . laws, what we can draw out of this strategy is rather the recognition that as well as t·....

i equal treatment, anti-discrimination laws may also seek to uphold a principle of

I equal respect. These two principles may produce a new tension when equal respect . requires different treatment. I doubt whether this new tension could be adequatelY'. resolved without reference to a distributive goal that explains when equal respect " should override equal treatment. .:

A final strategy for resolving the tension between the equal treatment principle "Ji and a substantive aim of equality that I want to highlight is one that diminishes ; the principle to an instrumental rule, This interpretation identifies a distributive r goal as the dominant aim of the legislation, and regards equal treatment as a \' useful guide to how the aim of the law should be implemented, though whenever the substantive goal requires different treatment. the principle of equal treatment should be ignored. Again this strategy provides a route for resolving the tension, though it encounters considerable difficulty in explaining why the anti­discrimination laws as currently formulated seem to place equal treatment as a dominant principle. This strategy must also provide an intelligible and coherent ;' account of the distributive goal to be attributed to the legislation, and it must have f

a plausible explanation of why the pursuit of this goal normally involves the l

procedural test of equal treatment. From this perfunctory review of the strategic choices available to accounts of the

aims of anti-discrimination laws, I draw a number of lessons. First. any plausible interpretation of the aims of these laws must award the equal treatment principle an important role. The second point is. however, that an explanation of why different treatment is sometimes required or permitted seems to necessitate the inclusion of a distributive aim for the legislation. It is the distributive aim that explains when and why deviations from equal treatment should be required or permitted. Thirdly, an additional principle of equal respect or equal worth probably should also be attributed to the legislation, but not to the exclusion of the equal treatment principle. Nor does this additional principle remove the need for attributing a distributive aim to the legislation. Fourthly, any distributive aim attributed to the legislation will have a trajectory that will eventually bring it into tension with the equal treatment principle. Although ,his tenvion can be reduced by diminishing the ambitions of the distributive goal. it nCI,' .nsappcars entirely. The final lex.on to be dra-vn is that it may be poxsiblc to dctinc « ,:istribuli\\.; goal th:ll

entails the usc of equal treatment as its operational principle, but which also sets limits to its operation by reference to the distributive goal. The two main difficulties conlronung such an interpretation of the aims of the ami-discrimination legislation arc to define an appropriate distributive goal and to explain why this goal requires considerable weight to be attached to the equal treatment principle,

All these considerations point towards a solution that attributes a weak e!c';lliuri:lIl distributive goal to the legislation, such as equality of opportunity. :-'ueh :\ phru«: both Implies that equal treatment ,h,'uld be the normal !'raetil":, hilt :!I,,' admit> the l'0)sihilitv that to render opportunities equal in practice It may he' ne"'-,,';Ir\ to :tlY"I,! uucqual uc.umcm Ii) ',lI1lC instances On l'\oser 111-;pectIOIl. ;"['.\\\.'\\_T "~I\..'lJ ~l '-.' .nion rr"il.l'" ~'1aint'Il!J~ in:llk'qu:tll' \\\. kJl(l\\ l h.t l l:llll:\]

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the types of skills, education, and experience that count as merit for the purpose of qualifying for jobs merely tends to confirm or reinforce the effects of

17 disadvantage. In pursuit of the goal of equality of opportunity, therefore, we need to intervene to give preferential treatment to disadvantaged groups. The problem is to know how far to take this intervention, because it is arguable that whenever inequalities in results can be discerned, there must be some inequality of opportunity that ought to be remedied. This problem is often addressed by refining the goal to be one of fair equality of opportunity, which of course merely restates the problem under the rubric of fairness. The question becomes when is it fair to treat people in exactly the same way, and when is it fair to treat them differently.

What interests me about this formulation of the possible distributive goal for anti-discrimination legislation is that it eschews any direct reference to conceptions of equality, Some notion of equality may form part of the idea of fairness, but that is not a necessary conclusion. This step opens up the possibility that the distributive aim of the legislation can be adequately described without reference to conceptions of equality. But if not some nO!]()!1 of substantive equality, what kind of distributive aim might be attributed to the legislation?

At this point in the argument, we may tum towards an examination of the explicit political justifications for the legislation that can be discovered in contempcrary government documents. As we might expect, these documents include frequent references to various conceptions of equality, particularly equality of opportunity and equal worth, But there are abo two other strands in the political justifications for the legislation, One stresses the economic benefits to be obtained by enabling all members of a nation', workforce to participa tc in the economy to the fullest extent of their potential. This argument comprises a standard justification put forward by governments for regulation of labour markets that the proposed regulation will improve the competitiveness of business.l'' A second strand of justification. however, should interest us more. because it is more directly aimed at explaining the aim of anti-discrimination laws This element of the official discourse refers to the not ion of social inclusion as a key justification for anti-discrimination laws.

Social inclusion

'Discnnunauon usu.illv amounts to cXLlu~il)!l ili "'-rn~:' (clj-m. o j U ;,\:(1 douht v.

should he wary of,llla'~hlllg too much significlnc,' k, 1",III)(":,! "k·~"','. S,'nic 11',:1:,

be mere froth, and most l;;Ja) be lklibcrateh amhwilouS Hut I thin k that the notion of social inclusiou represcnis a ,ignificillt ,hie: III P,)lltle,tt tll,H,,_~I\1. bC'l'<II1,C: it fits neatly Into a !'(,ileral strategicneed of 'Tlillci iL,\' r<'litics:u The 'llllld \\;\\

B. Herrle, 'Discriminnti.u- and Equaluv uf Opportuuu, :,\,lrthcrn ln-h LC~:i"n~' l-)QU) 10 OJLS 40R; 1. M. YOUl1ll, above 11:'. Ch;'plcr 7: B Pard,h. "lhc CJ';;,-' for Po-iuv,: Il,,,·,,,,,",,,,, ~n""7~' Hepplc and L ~/y',;c/t!k (etl,,). j.l"'\\l"1mi!lIIfIlI!l

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The Modern Law Review [Vol. 66

tries to distance itself from ezalitarian ideals associated with traditional socialist movements, whilst promising more practical and effective measures towards a fairer society than those offered by traditional social democratic parties. The category of the socially excluded is more precise than those suffering from economic poverty. The group of the socially excluded is defined lather as people who are effectively prevented from participating in the benefits of citizenship or membership of society owing to a combination of barriers, of which poverty is merely one. Other barriers include poor educational opportunities, membership of a disfavoured racial minority, an inaccessible location, responsibility for family dependants, or, more commonly a combination of such factors." By aiming to eradicate social exclusion, the centre-left political parties can steer a path between, on the one hand, promising strong egalitarian measures involving substantial tax and transfer measures, and, on the other. merely offering a protection of rights without any substantive commitments to distributive justice or a fairer society.

Although the phrase social exclusion spins continuously from the lips of politicians in Europe and has become it centrepiece of European Community Social Policy,l:' it is seldom defined. When clarification is given. there .HC ccrtainlv convenient ambiguities and puzzling divergences in mcanings,:'1 Yet the same might be said about the concept of equality, and that does not prevent us from taking the ideal of equality seriously, The problem is rather that the concept of social inclusion is less familiar than equality, so that its meanings and implications appear even murkier. It is not part of the familiar repertoire of liberal political theory or inscribed routinely in constitutions and declarations of rights. Sometimes appeals to the principle of social inclusion amount to no more than coded demands for equality of results or a more egalitarian society. Here I will concentrate, however, on the strands in this discourse that distinguish it from conceptions of equality including egalitarian notions of welfare. "

Social inclusion is an aim or principle of justice. 11 is often mistaken for an egalitarian notion of distributive justice. This mistake is understandable, because the demands of social inclusion may require help to be given to the same groups such as the poor who arc favoured by laws based upon egalitarian justifications. Social inclusion and egalitarian ideals share a concern about outcomes or distributive patterns. Yet there is also a fundamental difference. Social inclusion docs not seek the same or broadly equivalent outcomes for citizens. It concentrates its attention not on relative disadvantage hetween groups, hut rather 011 the absolute disadvantage of particular groups in y.riet:- The 0hjccti\\: is not some notion of equality ofwclfure. but aile of securing a ITIt;.mdl11 k"·.el o:\\eILlfc f.u CYL'ry CitL/CI1. 1ts typicd turuct s are "cLilJ poverty". 'll:l(,l1ljJ>'l\'cd : '~)llth', (Jf

'r.tciul minorities in deprived ncighbo.rrhood-.'. no: a more gencr:!l eLJ.: :ih'lt!nn of welfare.

21 For a guide to -th,-~ r~~g~: of po!I~~i~~llC~ encapsulated I~-lh~-id~(~ ~;l-' -~(lcl~;l Inch]i.;.ion Socwl Exclusion Unit. Cabinet Office. Preventing Social Exclusion, (March 200l) hllp:!i«WW.c,lb!I1et, o[ficegov.ukjseu!200t/psejPSE%20HTML/dcfault.htm. For a global perspeclive on Ih<' origin' .ind ~ignifjcancc of the notion of social j .....-l,,';n"· r , R{'dp'TS. C. Ci()rl..~ and J. B. 1,'i2Ul":fl.::\.h, (.:d"l, ,")O:'lr.,/" {: \~IU.'/(Ir' ;,ru'wn, f<l'u!7!l' (Ci~'nL'\-:-;I: Ir:1cmatic.loal In;,;\;,illtc (\~f L\h\1U:

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1 January 2003J Discrimination, Equality and Social Inrlusion

This difference from the ideal of equality of outcomes can lead another mistakent view that social inclusion must therefore be concerned with equality of resources. The idea of equality of resources is that individuals should be assured as far as possible an equal chance in society to achieve their goals or that there should be

\ equality of opportunity. Without investigating further the controversial questionsI of what might be meant by 'resources' or 'opportunity' in those formulations, we can distinguish the aim of social inclusion on two grounds. First, social inclusion

•. does not set itself the (ask of ensuring an equal distribution of resources or . opportunities. The point is rather that because some groups have so few resources ~ or opportunities, we should redress that position without undertaking a broader i. redistribution. Many advocates of ihe Third Way' support equality of , opportunity in order to distance themselves from egalitarian goals and to stress ~ their respect for individual autonomy.i'" Given their acceptance of the limited

capacities of governments effectively to redistribute resources or opportunities in a markct society, however. their ambitions for regulation seem to he confined in practice to helping those who arc completely excluded. The second. fUl1chme:ltal. difference from '·'.!\Iztlity of resources C"\1O>iStS ill the conccru for SOL'I:,l inclu"i\)ll 'h an outcome. It is not enough under the aim of social inclusion to gi\e a bigger share of resources or opportunities to disadvantaged groups, and leave them to choose whether to take up the possibilities they provide. Social InclUSIOn is committed to the achievement of outcomes, not Just life-chances. The 'lgniticance of this point emerges more clearly if we consider the nature of the outcome to which social inclusion aspires.

The aim of socia! inclusion IS a type of wcltarism in the sense that the outcome sought is to improve the welfare of disadvari.aged groups. Yet it is ll',,~ the same :'S

utilitarianism or the maximisation of welfare, for social inclusion give, priOrity to the welfare (If thetargeted groups. even if redistribution in their Eli our lloes nol

\ maximise utility." Furthermore. we should distinguish the type of welfa: c soug ht by social inclusion from that used frequently in economics and policy sciences The type of welfare required under the aim of social inclusion is not the satisfaction of preferences Iorrr.-d 2x~genously. .o which the state adopts a neutral attitude. There is a perfectionist clement in the idea of social inclusion, in that there is a conception of the essential elements of 'well-being";" These essl'l1lial elements of 'wcll-bcinu' include material goods such as food and ,bclll~l, hut alSLJ include opportunit ic. to p.rrt icipatc III "l::lllim:fu! \\:l\ III .llcla] !oJ.,'. Th.".: 11"11­l':li.ik·ri~d ~c\\.llb mclu.i« ;i rllillllil1~ k\'~l ld L'du...'<tlil)n. r'~ln;·,-jp~lljt);l -n r\.)1 1: k '>. ­Lul1ural ~jl·li\·lt!:>,. all ..1 work . 11l:~ii':lrjU,!!", :-J:cluld he ::Ht.' ~\) pur. ~ ~~~l';r l':i:.''ir..'ii

go~tls in i ....'!'.ttl(lJll\.J 'dl'-'\_' li;,'il-lll,:l,:JUJ ~(}i)J~-, Hl'<Jrdcr al!ll\.J\I..'.i ...'.;1 t, ' \,.;' '\\vii ­

being'. Th u- '\\-L'll-hl~i!lg' Cr..Hl111Irh':~; ~Uhj~'l'\ l\'lst and c.hj ..',:tl\ \:,t 110: 1'111" ,lj" \\ l'lt';.l! L'

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I ~ .

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I The Modern Law Rel'iew [Vol. 66

activities such as work, education, politics, and culture as the most significant sites , for the achievement of 'well-being'. But 'well-being' is also subjectivist because the

individual is permitted a range of choices about goals in relation to these worthwhile activities.

I Although no sharp line can be drawn that determines the minimum acceptable

Ilevel for these material and non-material goods, social inclusion insists that wherever the line is drawn, everyone should be raised to that level. It is therefore not sufficient for governments to provide material resources in order to tackle social exclusion. Non-material goods such as work are, if comparisons can be

I made, more essential elements of 'well-being', and social inclusion demands that !

disadvantaged groups should receive those non-material goods. Access to non­material goods requires, first, that the social organisation of these activities,; permits everyone to enter them without insurmountable barriers, and secondly, f. that each per~on enjoys the ability to choose between a range of possible goals in .. relation to these activities.

This emphasis upon the distribution of non-material goods derives from the deepest ambition of the aim of social inclusion. Although we have observed that social inclusion shares with equality a concern with the distributive allocations to groups and individuals in a society, its more fundamental objective is the outcome of social cohesion. Social inclusion is a theory of how society can be integrated I!

and harmonious. At its simplest. the theory is that if everyone participates fully in t society, they are less likely to become alienated from the community and will ~,

conform to its social rules and laws. Social inclusion fosters social cohesion or, to ~. use an older concept, solidarity. The outcome sought by policies of social inclusion '\0 is therefore not merely justice for individuals but also a stable social order. '.~

The significance of the connection between social cohesion and social inclusion r needs t({ be stressed. In contemporary liberal theories of justice, it is usually • presented as sumc~~nt to establish social order that we sh.ould establish a just or f,' nearly JU':'l society. If the conditions of justice are met, It ISargued that we owe a ·r moral or political duty to uphold those institutions and to obey the laws that f express them. In practice, contemporary governments do not appear to place so I much faith in a sense of moral duty. They recognise rather that social order is f fragile and that they need to take measures to promote social cohesion. At times ~, ' this recognition results in authoritarian regimes, which are indeed unacceptable f and do not deserve moral support. But govcrnmcnt-, influenced hy the 'Third Way' ' use more subtle method- to promote social cohesion hich :hough not entirely I'I'CL' from coercion, avoid the L'VCCSSCS of .ruthorit.rrian Sld(c', The aim or social

i inrlu-ion IS prcci-cl, t,,) "qabllsh conditions .md opport uuiuc-, that induce all citizens to participate in society and to come to value Its inst.tutions and

Ir potcutials 'People -vho arc economically discngagcd often become more generally

I, disengaged, reinforcing thc democratic dcticit 2~

This additional element of social cohesion explains in part the presence ,)1' the objectivist ("r perfectionist) dimension of 'well-being'. and it also accounts for the! paternalist strand in government policic , about sOL-ial iuclmion. Whereas the aim: ,-!' L'cil,al!l\ 01'opportnnity "'eL: to pili l'copk in :1 pl'siti"n ill which they arc able (\) p~:rtlLlpi.ltc III 1Ill' CC1,111l l11l:: .\ud (\1111.-'1 ,)'~pLYh ul' -,ULi~1i lil'l'. the aim \)!- ,,~,\..'iaj

: I I"~. () r 1\ i jl. I 1\... \ . ,.) I ~ 1.

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January 2003] Discrimination, Equalitv and Social Inclusion

inclusion also seems to include an element that sometimes requires people to become included. There are no rights without responsibilities. With respect to work, for instance, social inclusion policies, though not forcing people to work, strenuously try with a mixture of carrots and sticks to drive people into work. The carrots are 'in-work' benefits and negative earned income tax,30 which are designed to ensure that work provides more material benefits than welfare benefits; and the sticks are the removal of welfare benefits from those who do not co-operate in seeking to find employment." These policies can be described as paternalist, because they assert, for instance, that work is good for the individual and society, and, even if you don't want to work, you should, if you possibly can,32 Moreover, it is insisted that nearly everyone can work, provided that individuals receive appropriate training and education, and that employers dismantle unnecessary exclusionary rules. This coercive element distinguishes the principle of social inclusion from even the broadest versions of equality of opportunity. which leave individuals with the freedom and the responsibility Ie> make their own life-choices. including indolcnce.v'

It follows that there is a difference in scope between cgulit.rri.m wclfarist pohc ics and social inclusion. An egalitarian objective sets the outcomes that it wishes to achieve, but has little to say about the means that should be used. ThL' method could be one of regulating both the institutions of government and the market. Alternatively, the method could be one of progressive taxation and welfare benefits, leaving untouched the institutions of civil society and the market. In contrast, social inclusion requires regulation of social institutions. Money is not an acceptable suhstitun- for the non-material goods that form a core of 'well-being'. In the case of work, for instance, having a job differs from receiving the same amount of money in welfare benefits. A job provides the opportunity to acqui re knowledge and skills, to participate in the workplace community. to achieve meaningful goals, to acquire status or identity in the community, and to form friendships. The policy of social inclusion wishes to distribute these non-material goods to all members of society. Work is not regarded as a means to an end of material wealth, but an end in itself. because it is a vital ingredient or 'well-being'. And the achievement of 'well-being' for all groups is an essential clement in constructing a civil and safe community.

I will need to add further elements to this brief description or tile :l;m ('I' social inclusion as we consider its implications as a potential ju-titic.uion tor [he- .urns of anti-discrimination Llws What has Ill), ILl he'en mentioned. .m.! winch ilL'l'd, to he recognised at the outset. is t li.rt the i hcorv 01' s"Lial iI1L'!USl('Ii, like ,til p"litIL',!i theories, was not dL"C]",f",>,i i.: ;\ v.ui.um. but rather e\OhL'd in IL"I'"II.'e ell an analysis of wnteml'prarv SI'Ci,11 problem- It i, a product of the politics pt' rich Western countries in the late tvcuiicth ccm ur v In t!J".sc cOlllllrics, a m.norn v ,,!' the population had ellJoyed since IlJ-tS an unprecedented continuous pLTioli of'

30 Tax C;r;dit;-A~11999.

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The Modern Law Review January 2003] f [VoL U I Discriminauen, Equolitv and Socia! Inclul'i(ln

I

I growing prosperity and had been able to alTord the institutional arrangements of the Welfare State. But these arrangements seemed to be threatened by a minority who had not participated in that prosperity and who seemed unwilling to accept the norms of civil society. Although the material needs of this minority were

,I usually met by the Welfare State, they did not participate in society, and indeed appeared alienated. There was a concern about the breakdown of social order in inner cities, and particularly about a pattern of young people never joining in the institutions of civil society - voting, working, marrying and forming families. Instead of the Welfare State providing a solution, it was diagnosed as a source of

:'"';,'., I iL: problem." It was argued that welfare dependency actually promoted the way of life that rejected the institutions of a liberal and civil society. Whereas equality had been the political ideal required to incorporate the working class into civil :.r society, the idea of social inclusion was the political response to the need to , integrate the non-working class,

i;

Having described these elements of the aim of social inclusion, we can now consider whether this aim informs anti-discrimination laws. Recall that the reason why social inclusion interests us is that it may provide an answer to the question of when i:s it fair to insist upon equal treatment and when is it fair to deviate from that standard. I approach this task by identifying an architecture for anti­discrimination laws that seems to be implicit in the aim of social inclusion. My analysis highlights four pillars: how the social problem to be addressed by anti­discrimination laws is conceived within the policy of sociai inclusion: how social inclusion justifies deviation from the equal treatment principle: the methods of proof of unlawful discrimination; and the extent of the requirement for positive discrimination in the pursuit of social inclusion. This analysis enables us to identify the extent to which a social inclusion justification may explain thc aims ' and the content of the current law, though it also provides a critical perspective all. possible inadequacies in the legislation.

Sti ucrural disadvantage

What is the problem that anti-discrimination laws address" The equal treatment principle defines the problem narrowly as direct discrimination, that i, treating a person differently all. the ground of sex, race. or ""Ille other suspect eh\'silic:ltion, But in so far as anti-discrimination 1,I,\IS deviate Ir.«: rh.u '!'ndllill. it i,; ,-,k:lr that the social problem is reg:ll'lkd :1' one involving ":',,ctm,1i ,': s\'km:llic disadvantage Ior p,'okctL-d ,'rl)Ups. The notion of ':'j,-"::cti 'ii":ld', ,lI1l::g(

Disadvantaged groups

Equality justifications for anti-discrimination laws lack a determinate view of how to constitute the groups for comparison, The principle that different groups should be treated equally (in otherwise similar circumstancesj does not describe how these groups should be composed, Any group can claim that it is not being treated equally and demand that it should receive protection from the law, The groups might be comprised by reference to genetic endowments, socially constructed categories, legal classifications such as nationality, or some other criterion of classification. What is crucial is that the group is able to claim plausibly that membership of the group puts individuals al a disadvantage. One effect of the indeterminacy of protected groups 1II1der the equal trealment Princip le is that the province of anti-discrimination laws alwavs remains' 15 ,contested. '

In contrast. social iilclu;,ion provides a morc determinate criterion I'D.!" the cornposirum of P!'O!l:cled groups. The question is whether the gr oup is one thai in practice ha-, been JiorruI'Lirtion:J:d~ s,)cia!!y excluded eornp:ll',;d to the POp'~hllilm as a whole. Under this criteri"n, for instance, single parents become a group to be protected. because the lack of affordable and adequate child-care arrang~ments tends to exclude them from material and non-material benefits. The pnnciple of equality neither rules out single parents as a group III be protected. nor due, it require them to be constHuted as a group for the purposes of discrimination law. On the criterion of social inclusion, however, sex is not so clearly a criterion for the composition of a protected grour. Within the category of \\~l1len. there are certainly groups of women that suffer from social eXClusion, such a: those Who are pregnant or parents 'of young children, It may be argued. fllf~h('nn()re. that mo-: women suffer from sorm-compara!ile disadvantage during their lives, because the potential for pregnancy has an adverse effect or. ali women in the labour market. S0 that all women should be regarded as a protected class under the test of social exclusion. But the social inclusion criterion for disacl\'antClgcd groups seem, unlikely to include men as a class, so that sex on its own as a source of group composition, as opposed to discrimination against women, would not qualify as a relevant criterion for the composition of a protected group. Similarly, if we «msider age discrimination in employment, Justifications for legal interveIltion has~d Oil equality certainly permit the mclusion of this calegoJ"\. hut ai",,) lack ';'1\

ililtificat!I'J) f'JI COll(J.']I!1~! it I" ~'<lnic'uJ~lr age groul", In e"':lr:t,l. ::ilJ:;tiIJc:,!!,';; ha'cd ",\ "Jci:d C',c'lll,j'l1l 1\"ilid ll"lice ihc disrl'lli"'rtl"!ii:k i.: "l, ,.,Iull"Iilp],,\_

. ")(nl pi oldc'!' people-, cinJ, iic"'.il1,incd \\liC/1 ~'gc' ;;',C(<I;'I\', (I "Ti"u,combines two elements: IIISt. an apprcciauon th:d there P,!llCI'l', 01 (b:ldl'~t1li:t1,:C in the iab."ur~ni"r~el. tLilt i, ~!h()111 the :11,:l' of '''. wouid regllLllcdbadvant:lge or that there .irc group' tklt seem (iJ be di"pI'(lr"Htil'n:!lcll "nd "g"in'i di'lTiminatl()11 in hirinc practic,'\ !hilt c\l'i\lde drrl'c!lI OJ Indlred!: persistently in worse positions; and second, that there .uc ccrram permanent

"l'kL'I, a'Cc'li 5501 "bl'le. ,'I simI!<ir tindllH: of Jisauv-ant:lL(c rmch: .ilso Jc~'c1 10 arrangcmcurs. practices. institutions, and social struct urc-, Ii\"t ]'l'nc!u,'C thi­

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not interested in whcthc. (he ~'rou!, I, Cl:I"ltied by llIUJtCL!l'k i'L'netic:'. ,,'ci~dl\disadvantage provides a framework for the ambit of .mu-discrunin.uiou hl\IS. '1'1' constructed qualities. or kgidly lml'o,ed ch:lractl'ris!iL'S. L,c(ors whic'h !:lldt'r~tal1d t hi...-, fr.nucwork . it i" !tcl!)\'ul tn discnt~\n~l_\' Ih~-· .: l.'!l'in:''1« (\(' th.:

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[Vol. 66 The Modern Law Review

justifications. Nor is it interested in whether the group is regarded with disrespect. The composition of groups is determined by reference to the objective of social inclusion, which. can draw upon any system of classification. Examples of this variety might include single parents (regardless of sex) or residents in particular postcodes that include high levels of minority ethnic exclusion.

",;' Considering contemporary anti-discrimination legislation, there is certainly a pattern of the definition of protected groups that reflects an equality justification. ; Protection is usually afforded to both a group and its symmetrical opposite, thus' upholding a principle of equal treatment. There are, however, some exceptions to . this pattern, as in the case of disability;" married persons.V persons undergoing , gender reassignment." These exceptions are compatible with a social exclusion approach to the definition of protected groups. of .

~

Nature of disadvantage,

An equality justification is also indeterminate with respect to the character of problematic disadvantage. If the aim of the law is conceived more precisely as ' equality of opportunity, or of resources,. or of ,welfare. that add.itional element t provides a more determinate description 01 the nature 01 the required ] disadvantage, though the possible range of disadvantages to be considered t remains broad. Disadvantages resulting from discrimination may occur in any i walk of life. Forsthe purposes of eliminating disadvantages that infringe some t standard of equality, there is no reason to limit the potential scope of the i disadvantages to be addressed even in the dark corners of the private sphere.39 r

Yet when discrimination laws are enacted. they address particular targets such r as employment. education, the provision of public services. and many other t aspects of business and social associations. First among these targets is invariably f.­access to employment. or, more precisely, theability to earn a living through the t provision of services to others. What accounts for this focus on work? The answer \ cannot be that discriminatory practices are more prevalent in emplovmcni than t other social contexts. This hypothesis seems improbable. Considerations of ~ efficiency propel employers to hire the most productive workers regardless of sex! or race. Direct or intentional discrimination in hiring practices is not usually an t objective of employers, because it is likclv to be inefficient. Discrimination: becomes efficient for employers only to the CXI"! that. hy l!',ing criteria of group' membership as a proxy for a test for productivity 0, ,; Job applicant. the employer saves on transaction costs (the co,te, of il1\estigatl11)! the rcla tr..' ;"0C " !c' ;'. ity of job apr}lcimts) tl~ such an extent that the saving, exceed the cu';\'. of mistaken job offers. DISCrImInatIOll seems much more likely to nourish when the econonnc consequences are insignificant. that is in daily social interactions.

'6 Disabrlity Discrimination Act 1995. ' )' SL'X Discrimination Ad \q75 ~ .;: but EC Directive ~O()::2 ::~. new Art 2(1) implic- .a :-'~'mmdriGIl'

,IPP1\l;l\...h !"pr 'martial or hmil: :-lat\IS •

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< January 2003J Discriminat ion. Equality and Social Inclusion

The emphasis upon employment in discrimination laws is all the more striking when we appreciate that hiring decisions by private employers comprise one of the hardest targets for which to justify legal regulation. Ajustificatirn, for regulation is easier within subsisting contractual relations, for the implied obligations of the contract are likely to rule out most forms of discrimination. In employment contracts, discriminatory decisions probablyamount to a breach of the implied obligation on the employer not to act in a way that destroys mutual trust and confidence (in the UK), or a violation of some other general private law principle such as performance in good faith in the USA, France, and Germany. In connection with hiring practices, however, a private employer can rely upon a right to freedom of association or freedom of contract to resist any legal regulation." In other contexts, such as the distribution of educational opportunities by agencies of the state, this obstacle to regulation is absent. It may be possible to argue that the right to freedom of 3ssoci:lIion does not include the right to discriminate in hinng decisiolls.42 hut employers will nC\'c.~r(helcss assert that their freedom is helng unjustifiably invaded ill costly way». To overcome that objection, it is nC'Cl',SJry to h.ive a powerful argument for justify ing regulation of hiring: practices. such as respect for the right to equal treatment Or a compelling distributive objective.43

The reason why access to employment is the primary target of discrimination laws surely lies in the significance we attach to the distribution of jobs in society. The significance of employment is explained In part by its welfare effects. Since most of us depend upon employment as our principle source of wealth. the distribution of job, by employers is a key distributive mechanism in society. If hiring practices in the labour market lead to uneq ual dist ributive ou tcorncs, causing for example disproportionate levels of poverty among some minority groups, egalitarian arguments might lead us to conclude that rc)!ul,ltini! hiring practices should be the principal goal of discrimination laws, Yet this dist rihutiv.. argument lacks an explanation of why !l:e egalitarian goal should not be achieved through taxation and welfare payments rather than through the regula tion of hiring decisions. What is required in addition is all explanation why the distribution of the jobs themselves matters, 110tjust the economic benefits flowingfrom them.

Farlier it was argued that the notion of social inclusion attuchc-, considerable' signilkance to pos;e'SlOn of al')~. The problem of s(Ju;,11 e\l'!w;i"ll [S ihld ',)Illl' groups in ~()cil'!:' ~\rl> d;"'11icd th,: '-'r'J1~)rlLlnily (I) r":U"lh'ijl.dl' in lh\~' 1I1\.>']l;tji:~r,h ofTered hy "llL'il't~- Il!(-\lU.~h ".hie!: they m.r,: l'~L~l))i"ll I'or 1IL':r ~i\l'''', tir.. cOJlncction-; of a l",11l11l1 uiutv. ;l1hl J -cn-,c uC -''>I.:I!'-rl:'r'1c'..'l. \\ 1-:1',)\ ici. ~ ~'i)l- nhl"L

people one ol the 1'Iillcrrdi l1led""'1,tn' l('l' C'''J'.Stl"lll:tllll' mc,tlling, Cl)I)III1UIII1\.

and status. Rcdisuiburivc \\-clt~lrc\ ;'rngr~!1)llllC", ihl'llglJ L'l1t L"j" thl' ~-'_'!i\,r III eCOn0I111C hardshql. c.mnot tackL: except ;11 the Illar!'il), the pro hlcm ,d' ""'Iill

eXclusion, Social I!'c'lll,inl) thu- ['!"In ides n argument Ie'\ Llr!'cltng "l'~C" I,;

employment as the primarv concern of' disc mination b\L II cxpl.ri n-, \\ h. ""X'~"~' to Jobs should be Ih;; pr iucipa! l.i'g,'1 ,d' d "'rim:'Lcll"ll :.,,''-\ .. lh.: b,·,.1 "k:'. I,,,

~l R \ 1'[1'["" i ... {( :Jn: i);: I ~_: \ ! i

~2 Fr\f th<' I! ~ ,-' (.

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JJThe Modern Law Review Januan' 2003][Vol. 66 Discriminalion, Equality and Social Inclusion

against social exclusion is having a job. and the best wa~ to get a job is to have a structural disadvantage that it may be attempting to redress seems to be ,t.good education, with the right training and experience.' This argument suggests detemlined by the underlying equality justification for the law, The idea I of that in the selection of the nature of the disadvantages that should be addressed by equality respects the choices of individuals about how they should lead their Ii ves, discrimination laws, the notion of social inclusion has played a role as all but says the law should insist upon equal respect for those choices." Respect for underlying justification for legal regulation in determining the types of those choices means that the law should not question social norms in so far as theydisadvantage that need to be addressed. J are conventions and patterns produced by the choice of individuals,48 Under this

Iequality justification, the prohibition against institutional discrimination should

Structures concern only those rules that, though formally neutral, have in their application a disparate adverse impact on certain groups as a result of attributes of those groupswhich they have not chosen. d Inf I'" If' dBothfonnaI an mrorma msututiona arrangements 0 our society ten to "

maintain existing distributive patterns, even once direct discrimination is i eliminated. For instance, the norma! role of child care performed by women f puts them at a competitive disadvantage in seeking better jobs, whieh are typically , designed with hiring rules that favour work experience and set requirements of long hours of work, This combination of formal institutional rules (the terms of employment) and informal social norms (women taking primary responsibility for child care) results in a predictable pattern of exclusion of women from tile better jobs, as evidenced in the continuing disparity between average rates of pay for men and women, In order to address this type of distributive pattern. discrimination laws were broadened to encompass the formal institutional rules, which. in combination with informal social norms. have a discriminatory effect. Through , the tests of indirect discrimination or disparate impact, the law questions the t validity of the institutional rules, though it leaves untouched and unquestioned the ~

informal social norms. ,f' Under the tests of indirect discrimination or disparate impact that the law uses !

to tackle structural disadvantage. those who want to benefit from discrimination f' laws have to rely upon stereotypes or social norms that they may wish to escape or t reject." For example, a requirement of full-time work may be more difficult for ~, women to satisfy if they fulfil child-care responsibilities, In order to take f, advantage of a remedy for indirect discrimination. a woman has to demonstrate ' that the institutional rule has the effect of disproportionately excluding women from work, because they comply with the social nonn of fulfilling child-care responsibilities. This reasoning is vulnerable to attack from those who wish to reject the social stereotype and argue instead that women arc not necessarily the partner who should take child-care responsibility ," that alternative methods of child-care arc available, Thus III Clyrn.: v Wandswaul, T!", ,'ugh Council ..j" a rule again"t job sharing thc post of librari.m was held not to be UJ.;','riminatcsry ng.iin« women, because the claimant had had the choice to pay for Iull-n.u« ,,'niJ:j-l'are, As soon as the court or tribunal denies or rejects the social stcrcotyp, in this instance women typically stay ai home to take care of young children the legal challenge to institutional discrimination begins to fall apart. This paradoxical reliance of the law on indirect discrimination on the persistence of patterns 01'

'f I';"'.""il.i h:.: ih ..: F'rimc t-,Lr,\,;!,,:-r', Snci:~l f:\i.']usi,',n t'11\\ ()jlle" 11/ \1]-,' Pruu,' (;"F .\c.· 111/ !(J-}."" }'l',I( 0/0\ Yr,.r ',,' J!.' . iI,', JII , I/J' .'1,'

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In contrast, owing to the paternalist and perfectionist clement in the goal of social inclusion, choices made by excluded groups that have the effect of reinforcing their exclusion are not choices that the goal necessarily respects, The social norms and cOl1\'entions arc themselves a target for discrimination laws. if they have the etfcct that the groups who make such choices arc thcrcbv nciuding themselves (rom emplovment. Socii]! inclusion Ihu-, questions both the in,titu­tion,ll rule and the su.:ial convcnuon In respect of the ','cial L'clll\cmi(lll th"t women tcnd to rake care of childrcn. social inclusion challcnges this convention to th<~ extent that it results in women becoming soci:tlly excluded, Because the composition of groups is determined by reference to the criterion of social exclusion, the argument becomes that parents with young children who do not work and are not supported financially by a partner in work should not be permitted to follow the social norm of taking responsibility for childcare to the extent of excluding themselves from the labour rnarket.?? Given the difficulty of finding affordable child-care. parents n~ay need part-time jobs in order to achieve 'well-being', anced reflected in the new right to ask for changes in II'or!;ing time, '(J

The problem with " hiring rule that precludes job shanng from this pcrspccuve is not that it diserilllrnates indirectly between men and women. hut that it l1bstrucls people such as parents of young children who needjob opportunities tor part-tim­work from entering the lahour market. For the purposes of indircc: discrimin., t ion law. the implication of a social inclusion ,;ustificatlOn IS that whether or not the individual could have chosen to comply with the formal rule by departing from social convention is irrelevant. because the aim is not equal or fair opportunity> but the elimination of rules that hale an exclusionary effect. It should he sufficient 1,.1 establish a claim for indirect discrimination to prove thai :Ill In,I:llili"l1al practice ha , ih.u l>IreCl. It IS possible' t,l detect such Ii change' iI' the ilell kst f"l" illdll"c'ct sex di'lTlminilllon in cmplUClilCnl. 'I be amelldcd S,'.\ [)isc,'illlri • iii'l!1 !\lL

Ins ,ectionI12)JI') ,I,,,,,, """ J\Jrln,''- clcrucnt th.u I"kcd '.liCii"," " "i"': ­lioll,;lC number of women G\1l11lo[ cump)y l\ith the him]!! rule. "n,j a,k, lliUl'l\ whether the rule h:l' a detriment.r! cffect for a eomidembil Llri'L'r pr"j)(II'110Il ll[

IIO!l1CI/, thus aluiJIl,,, the ISSUC o( choice and social CUllYCnlIUn," Drawino tOQethn'tk,e oh,cl\;i1;un, dhout .',lruclur;,J di'a,h'IIPlar:,'. ".,,;j,ll

Inclusion cxplau», whv aecl'ss to employment IS a prim.u, tarl'cl for the l~lI\. ofT,:r,

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The Modern Law Review

a different and more determinate approach to defining the composition of disadvantaged groups, and offers an alternative to the current law's reliance upon: social norms in establishing claims for indirect discrimination. Clearly the aim of/ social inclusion does not provide a satisfactory explanation of all aspects of the' law addressing structural disadvantage, but it does help to account for certain features that are puzzling from the perspective of equality justifications.

Proving discrimination

An equality principle in anti-discrimination laws invariably requires a compara-j tive approach to proof. In relation to sex discrimination, for instance, the law of direct discrimination launches an enquiry as to whether the woman was treated less favourably than a man. The comparative approach initiates a search for a man or a. member of the majority group in similar circumstances, a search that ~

often proves fruitless unless one creates a hypothetical man. This legal! construction IS often difficult to build. because a member of the majority or ~ privileged group is unlikely to have experienced structural disadvantages in a ; similar way, so that it is hard to envisage how members of this group could find t themselves in sufficiently similar circumstances for a fair comparison to be made, f The law of indirect discrimination offers a route around this problem, tfiough it i

'~;~;uaiy 2OO3J Discrimination, Equality and Social Inclusion

statistical comparison, whereas a substantive equality of results principle points to the relevance of a broadly composed pool of comparison. usually consisting of the labour market as a whole. In the case of a hiring condition such as a particular educational qualification, for instance, the focus of the equal treatment principle is on whether the condition disproportionately adversely affected a protected group within the set of job applicants. The relevant statistical comparison under this approach is the proportions between privileged group and disadvantaged group in the pool of job applicants compared to the proportions in the pool of those

•'employed. From the perspective of equality of results, however, the relevant . statistical pool should be defined at least as those available in the labour market who could satisfy all the requirements for the job apart from the disputed educational qualification, It is the proportions between privileged and disadvan­taged groups who can and who cannot satisfy the condition that serves as the comparison for establishing indirect discrimination. ln respect of this difference between the relevant statistical pools, it is possible to detect a contrast between the courts in the USA. which favour the logic of equal trc.umcnt principle in the selection of' statistical pools of comp:trison.S-l whereas. UK courts have more commonly adopted' the logic of equality of results.i? This difference is obscured. however, by the common problem of the unavailahility of the relevant statistics such as the racial composition of job applicants.

retains the comparative approach to proof. It permits women and minorities to i~ As a distributive principle concerned with results, the aim of social inclusion challenge an employer's hiring rules on the ground that the rules have a ; supports the logic of selecting the broader pool of statistical comparison, The aim disproportionate adverse impact on them. ; of social inclusion is to eliminate exclusionary rules and practices regardless of

In contrast, the goal of social inclusion does not depend upon a comparison with, whether they have in fact excluded job applicants in the past. Yet the statistical a man or some other privileged group. The policy of social inclusion asks for proofIpool favoured by social inclusion differs slightly from the broadest pool favoured that the rule or practice tends to reinforce the exclusion of an individual member of ,.' by the goal of equality of results, The social inclusion principle does not focus on an excluded group or most members of the excluded group. A comparison can the statistics for the labour market as a whole. unless the job concerned requires supply evidence of exclusionary effect, but it is not essential to proof. For example, , minimal skills, because its concern is with those who possess the skills to benefit if the employer's rule forbids part-time work. this rule reinforces the exclusion of from the job or those who could acquire them with training, any groups such as single parents that may require part-time jobs. Even if it isI: demonstrated that other groups are similarly or equally adversely affected by the' rule, the fact that this particular excluded group is disadvantaged by the requirement is sufficient to provide a basis for a challenge to the rule. •

It is evident that the formulations in current legislation reflect a comparative approach to proof 01' discrimination that liuvs them to a notion of equality, ' Although the compar.uive upproach is not aIv, " reqi..red. as in the case of' discrimination on grounds of' prcgnancy,S2 it is the dominant test. It is also worth: nUling that although a notion of cqilalit ,' holds SWJY In relation to proof or discrimination. the precise conception of cqualiiv that should b.: 'lprlied is often ' subjcc: to dispute. This di-putc emerges in connection With statistical comp.rr isons ' used to establish disparate impact or indirect discrimination, No doubt much of the difficulty here can be attributed to a combination of thc lack of precise st.uistical information combined with the complexity of the test. This test requires ;1 comp.uisou between the ratio-, of the priv'ileged ftrOllp to thc protected group in tl\,' ,[;!t'slicl! pool," Th,' Cll\1:11 t"'::'\rlh'llt j1I'II1C1plc lends to confine the pools for

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As well as supporting the use of broader statistical pools for comparison. the aim of social inclusion may throw light on two' other problems that emerge in the comparative approach to proof. One difficulty concerns the interpretation of statistical differences, The test for discrimination in EC law is not one of statistical significance in a technical sense, but rather one that adopt, a formula that there must he disac!l:l11tage to a 'substantially higher proportion' of thc protected grn\Jp, 'f, The rUIliL' j'(,,,'d bv that lest is \1'111 it detr,lc!S frol1l thl' commitmcnt to CljUUlll\, which ,hould require mcrclv ,\ t,'sl 1'1' stat istical significance, ] h.rc lI1it) he' rr:lgm:ltic con,ic1cratio!1' at \I,ln)." here. ,uch <1, the' unreliahility "I' Ihe qatl~!Il'S thcl1lsclvcs, But an additi()/n[ cxplanatio n rlll

this slight de\ialion from thc cqua litv st.md.rrd may he th,lt the iL'gi';!:ltioll implicitly acJ...nolVkdges that its distribur}, c .um has to be morc IOCUSSL'L! on rilles Ihat havo a considcrnhlc cxclusiolJarv effect. and has 10 rcfritin from aSSl'SSllll'llts of the merits of everv rule that produce-, results that de\'i:lte slightly from a normal distribution

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[VoL 66 The Modern Law Review

A second problem that claims of indirect discrimination sometimes have to confront is the exclusionary effect of a combination of rules, For example, an employer may use two hiring conditions such as a formal educational qualification and a skill acquired through work experience, The approach to statistical'

~comparison under the eouality principle requires a comparison between the group in the labour market that can comply with all the requirements for the job and the group that can comply with those requirements except for the omission of a

\ disputed criterion such as the formal educational qualification, The problem may' arise that, although anyone hiring condition may not create a substantial difference in the composition of the comparative pools, a combination of two or more may have a significant exclusionary effect, There is a danger that under the approach based on equality, an employer may be able to reject the inference of indirect discrimination by insisting that each hiring requirement should be viewed in isolation, The. aim of social inclusion explains why this method of analysis is un:;atisfactory, Social exclusion is often the prodect of a combination of factors,

a member of a minority group in a particular l1cit>hbllurhood, A.uch as bcin~ disadvantaged group is therefore often identified in thcorics of s,1clal exclusion b) more than one criterion, The aim of sociz.l inclusion thus perhaps explain~ our' intuition that the method of analysis that examines each hiring condition in isolation is unsatisfactory, because it does not appreci -te the multi-faceted sources

of disadvantage in many instances,57

Direct discrimination and a justification defence

~ ~

~

In pursuit of the goal of social inclusion, the elimination of a strict compamtive t approach to proof of discrimination necessitates the introduction of a justificatIon, defence for both direct and indirect discrimination, Under most current r discrimination legislation, a general justification defence is restricted to indirect t c1iscrimination, though narrower defences such as a genuine occupational; qualification are available in some instances of direct discrimination, The limited I availability of a justification defence to direct discrimination seems to be l mandated by the equal treatment principle, By requiring consistent treatment, 'i the equal treatment principle creates a strong presumption against the possibility i of justifying intentioned discriminatinn, Any excepl:Ol1S must he e,pl,iined hI ' referenc,? to some ot lur import.u.t right. such as r. ,,'.,1. " :\'a,'\, ;'i :'1\

,....'trl'mcly light rcquJn:Illc'nt 01' neee"it) for Job pcrfonnar«. In l",':llU< ::Ihie:

the principl(~ of social inclusiuu. jusufications (or hiring ru:, : h: , c\ discriminate can tolerate a broader range of constderutious. p:')\IU, 1;':11 the justifications arc compu..blc with the .nm "I' social in,:!u,i,," II 1\ h,,'lpfll! Ie

cX1Hnine one example of a justification defence to direct dISn!llll!UIIlll1 111 t'IC:t!c,

depth, for it reveals how a discrimination law based upo n Sl)Cli'\I'"'II1,,,"1 rarhe! than equality approaches the task l'f dcfu.ing discrirninu tio n

TIle example is thc Disabilil\ Discrimination ;\ct 1')'1: l nldl'l' III,)S: 1

t tt-. ..'~'!i:1I!l;:\;un ];,'\...,. t]:' L'-,t I' ',).2 I ~',">r,()n"ll"\l\i~\ in \111\ .\(" :1 \ ( ,'<,,'''"11,:

d Ll'!llp~lrali\L' l'nt'~'r;l~1! thtll L'l)l!tFd."i" ihl..' ["C'.U!\ (l! );'lJ

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January 2003] Discrimination, Equality and Social Iii' lusion I disability, For example, if an employer operates a hiring nile that recruits must ~~; receive a satisfactory medical report, and a disabled person receives an unfavourable report as result of the disability, the way in which the law analyses tt the case is to say that disability discrimination has occurred unless the employer r can demonstrate that the hiring rule is justified.i" It is irrelevant that the hiring h rule applies equally to persons without a disability.i" and it is not necessary to lh:, prove disparate impact. Once it is shown that the rule has excluded a disabled ,~

;

person, the question is not whether there was unequal treatment, but whether the ~ rule is justified in the sense that the reason for the rule is both material to tile rcircumstances of the particular case and substantial/" ~~

This justification defence is further refined in section 5(2) of the Act, which holds r,,~, the employer legally responsible for disability discrimination, if the employer ~:~

1{cannot justify a failure to make reasonable adjustments to arrangements that place , a 11isabled person at a substantial disadvantage, Equal treatment ]S not good enough, What the legislation requires is a dutv to treat disabled persons differently, to make 'reasonable accommodati();lS',61 not to treat thi_'Ii~ equally.

Althou;il the formal ju-rificauon defence under the DDA appears [01111[>"'" ,I low threshold,',e the real substance of the justification issue is to be discovered m the question whether the employer has failed to make reasonable adjustment for the person's disability, What amOUnLS to a reasonable adjustment is guided by the statute and an elaborate Code of Practicc.l" If an employer has complied with the Code and considered all the possible adjustments that might be made for the disabled person and only rejected those ones which it is reasonable to reject on grounds of excessive cost, impossibility, and perhaps safety," the fipJi question of whether in the particular circumstances of the case the hiring decision was justified seems likely to impose only a low additional hurdle for employers, The important question is whether all reasonable adjustments were considered, and here the tribunals encounter the acute difficulty of balancing the costs to the employer of assessing and making adjustments against the exclusionary effects of the hiring rub,

Under thl' policy of social inclusion it becomes possible, therefore, 10 recognise a broad justification defence to direct discrimination. The core element of this justification defence requires a demonstration that the objective of the rule serves the goal of social inclusion, The potentia! width of justifications can be illustrated hy the facts and legal reasoning in James v Eastlcieh Borough Council. h' The Council operated a rule that pcr-on-, of state pensionable age would be admined Cor frc.. ,' 1(' the Council's ~\\ lnlll1illg PC)o1. At that umc 1111.' \{"ttl' j'h:n'ljl,)l1Lll"'k ;!f-;:\...'

\\':.l:-. h{J ({'J \\'nl~1Lll ,ind (.5 for 111('11. Tlll' app!icltidl1 ill' 1hl'l rul,. ~'IlLiJl,..·\l lh,-d \1r.Lun -. tt:;.cd ()l. t1 ;.lI d ihc l'ull Lh~tr~,~ \\hl'rLll~ hi ... \\,'L..' ,11'111<.' !\: .i t' -' ,;,ll';\:d

Ih,' pou ;,1 the ,'nncl'"ionary,r:tte, II' this rule I' ;\O,se"cd e\l'lu'l\ch I'n'!11 ih c PcrSPCl't . c ",r ;t Cl'l11r:;r'lti'.e l'qllalit\ prjnciplc. it ""l'm' to b,' ilt; Ine'c:,pahlc

~~ LUI/dOl! Borough oj llannncrxtnnh & F/(f/..,'uil v Fdl'JJSH orth 12t1uuJ rRI.R (191 I< -\ 1 )'! cu-: \ roc ltJ 1" .\",,,,,Jid, [I JRLR 3J~ C,\ (If) Di:-~Ihl\lt> [YI:-,(!'I!)iir'"tllnll Act I'N:'s ~l 'l',-' /\r<..k'll LJ ill 1'(I,lf (}!ff('( \ .111111" ~=II;illICI'~ '.(i~ '\ 1"7 , ,\

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The Modern Law Review [Vol. 66.;:";V');inuary 20031I conclusion that 'there is a difference in treatment between the sexes. 'But for' Mr James' sex, he would have been entitled to the reduced charge. From the pers­I pective of social inclusion, however, the analysis becomes more complex. We can

! understand the Council's policy as one aimed at a group, persons of state pensionable age, which finds it difficult to afford to take advantage of the facilities offered by the community. If the reason for this exclusion is the cost, a more: inclusive outcome can be achieved by introducing a discriminatory charging rule in ' favour of that group. Although the rule about concessions incidentally violates a strict principle of equal treatment on the ground of sex, the principle of social inclusion provides a reason for dispensing with an equal treatment rule in this case, because equal treatment provides an inaccurate or off-target guide to the goal of');

.~ achieving better social inclusion. Social inclusion permits unequal treatment if that' measure favours an excluded group. and the excluded group can be defined by ~

reference to the pattern of social exclusion - persons of state pensionable age. In l short, the rule is not an unjustified rule from the perspective of social inclusion and ~: therefore the Council should probably not be held to be in breach of the legal i

obligation. A majority of the Judicial Committee, 110\\ ever. upheld Mr James'

i claim of sex discrimination, because the argument based on equal treatment was t compelling. The temptation to introduce a qualification to the equal treatment .~.I principle for benign motives was resisted, no doubt in part because it afforded no t

I criterion of what should count as a benign motive, and in part because the history f of discrimination against women has been replete with men who acted with what ~I they regarded as benign. chivalrous, and considerate motives'i!

Positive action 'f: ' Our earlier review of equality justifications for anti-discrimination laws noted the' tension between any kind of different treatment based ).Ipon the characteristics of ..•. protected groups and the equal treatment principle. This tension has not entirely ..• precluded some forms of positive action, but any measures have been subject to l 'strict scrutiny' or a stringent test of 'proportionality'. In the United Kingdom, ~ with the possible exception of Northern Ireland,66 positive .action with respect to J.,

the allocation of jobs by quotas or the like has been regarded as too great at violation of the equal treatment principic.'" Om earlier theoretical discussion. suggested that in order to override the equal treatment principle and to jusufy ' different treatment. what is required is a compellurg :];. u mutivc justification What kind of positive action does the distributive goal "I' social inclusion mandate?

l

I f 66 under The Fair Employment and Treatment (Northern Ireland) c>rcier 14% 51 t9n No 3162 (1\J:

2\ l. the Equality Commix-ion III Northern Ireland is required to promote 'affirmative actior. (article 7). which is defined as action designed to secure fair participation in employment by members of the Protestant and Roman Cathohc Community (article 4). H owcvcr, the mandator)

i or dcr- that the Commissron ma~ ctircd towards employers are limited to mc.ivurcs t~ rcvio;;e pr;tl,ticl''' fOJ tuc PU1T'\"l·'>I' or pr()m()tin~ cqunluv of orp~Htunit.\' (Article 14) .\ i\1cC01p;1n /)c\lTlnillii/tiofJ (t,lI i..«. CUI(', {.'ill! '!1/!C!"i(J!, (Ch(,lr<.lILlrt. 20(\()) )1') ~JX. u: 1-1:­

h-7 Ihe lnlriclCJL':-> and pcrhcq)\ incon"i",tclIC1L'"'l ()! th ...' US !1lhltil)n arc the {If thl'-> 1.:'1:-,,1:

i i llK'r,,-' i-, J snul.u f':llkrn ol d hlC'hh i"-"Iri,,:ti\..: III :\)':ll"l trllr

,lrlJ:'ili:lil\~ ;1;:.11(\1 pr\',l'"~'d!;l" "'" ,I fl'r rd"t (~j' "h":111111'1,1\!<II1. .m.: ,,,';,\111\\ (\PI;:.,1;·, tv.l.' ;df' /:,J;ioud,- ( .1" f '..; ~{,,.;

Discrimination, Equality and Socia! Inclusion

Positive discrimination for the purpose of social inclusion requires that employers should be sensitive to difference and make reasonable adjustments, in order to enable members of excluded groups to overcome obstructions to their obtaining work suitable for their skills and capability. This duty requires employers to consider amongst many things how the workplace is organised, how jobs are structured, and how the skills and capabilities of the workers could be improved, with a view to the reduction of barriers to employment for excluded groups. We have already considered an example of such a duty of positive discrimination in the duty to make reasonable accommodations under the Disability Discrimination Act 1995.68

Social inclusion does not, however, require the employer to adopt quotas to eliminate statistical discrimination, as might be required under a strong egalitarian approach. These quotas are unsatisfactory from the point of view of social inclusion, both because they ignore the question whether the individual worker can achieve 'well-being' from the job, and because they do not address the causes of social exclusion."? II' the cause of social exclusion is that applicants from a particular excluded group lack the training to perform the job, the -ohuion lies either in the provision of training or the reorganisation of work so that less training is required for some positions. If the cause of social exclusion is that the hours of work render it difficult for the excluded grqup to conform. the solution lies in a consideration of whether flexibilitv in hours could be introduced. This duty to make reasonable adjustments in ho~rs of work mieht apply to our earlier example of job-sharing the position of librarian.Y or to -the case of a religious minority for whom \~ork at a particular time is incompatible with requiredreligious observances. ,t

Although at first sight this requirement for positive action mandated by the social inclusion principle appears to be at odds with current discrimination law that in general forbids different treatment. a closer inspection of the operation of the law of indirect discrimination reveals that it can approximate to the model suggested by the aim of social inclusion. In a claim for indirect discnmination. once the indirect discriminatory effect of a hiring rule is revealed hy statistical evidence. the employer must justify the rule on business grounds to avoid a successful claim of discrimination. The Justification standard currently used in cases of indirect sex discrimination is under EC law a test of prup,)rti('n~liJty,72

which is similar to the 'busines-, ncccssitv test used in the Unncd St~lte". Under other CK anti-disCl"imin~\Ii()n L~\\·s. II;,' te,t I' pct"klJl' i\ \"l'.l!.;,::- d

rcquirenl~l1t to b,d:lI1Cl' t~hi('cti\'ch the di:-crilllll1~!!\l!'} (';('c,_'1 11...' IHle- ,!;',1t!1~!

(~:.; Di:<lhility DI.'-,LTilllln,tl1(111 :\ ....: l~));- (1('7 1 l't\;[-;iL!.... m.-«. Ll\\l',JLJ!-,!...: tr c;lIl'hT'1

different rrc.umcnt I" L>II under 1] I\.' dut\ or fl'cl\;nT!:lbk ,ldjlJ<.,[lnCl1\ \l",

;!tEmpl(lyf1]('lll hJl~)':\ \It - .'. \\hl(,:h in"",\-- t'lLit 'l,,'ljllll.\' rl!OT,'

Ill\..' ~Jmc \\<1)' hut 'rc.juirc., "'pc\..·iaJ mc.:-,~r,-,..; :tnJ th~ (.rddr',--rl'n\:..:~,' caoJustlfy quota-, in order ((1 hr cach ... o....·!dl (:(In\\'nt!()n:-- that ...'rCcl!l' lv.uricr .... t\'

Travait des j'~wun('s v COJ1(}(]illJl National Raibl'or Co (1987] I SCIZ 1114, ~u U{CanadcI) .

69 There arc nlso rca-.on, It) he ,th,)!!! till' eCr..:-di\vJlC-,<.; (Il' 111,[11(1

prograrnmc\ in til,," 11,;')Jr \)( lh,' 1"lmrh,:lh'l' l-. ,-li)),1", II!' DI';:lbk:d r,~·;" \""!~ I,

U'/II/..,'I ( N!,c'/:) f l ' . :ul( ,11 I" 111,'111 l< ,1\" \'J'J 1, in ell /}/O v I~ 't/.I: I II ,')i 11' ~ !,I \ i ;1 JJ'/l1uJ\ hn-, 1'/ d ,I,"

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The Modem Law Review [Vol. 66 January 2003J

Discrimination. Equality and Social Inclusion the reasonable needs of the party imposing .the condition.i ' This justification ~~t~1' defence requires the employer to discover and reveal the potential costs of eliminating the hiring rule in the same way that the duty of accommodation functions as an 'information-forcing rule,.74 Then the court must balance those costs to the employer against the exclusionary impact of the rule.

As Joils argues in the US context;" this process is clcsely analogous to the duty to make reasonable adjustment, provided that the courts do not permit a trivial cost to the employer to count as a sufficient justification, If the courts accept both' that an employer may have to incur some costs to accommodate excluded groups ~ and that those measures might involve reorganising the workplace, altering job j

content, and improving training opportunities, a justification defence to indirect discrimination presents a similar enquiry to that posed by the duty of reasonable adjustrnent." For example, in London Underground Ltd v Edwards (No 2),77 • where an employer introduced a new shift system that compelled a single parent f eventually to resign, the court found that the shift system, though serving the l employer's business needs, did not prevent the employer from accommodating the nec.,js of single parents. As Morrison J observed in the Employment Appeal Tribunal, '[Tjherc was good evidence that London Underground could have made f arrangements which would not have been damaging to their business plans but t which would have accommodated the reasonable demands of their employees.' ~ These similarities between a justification of indirect discrimination and the duty of ~

reasonable adjustment appear more transparently under the EC test of t proportionality. The key question under the test of proportionality is often f

'. whether the employer's rule is necessary in the sense no other rule with less adverse i impact on the excluded group would satisfy the business needs of the employer." ~ Arguments about justification in indirect discrimination claims amount to more J than an individualised claim for adjustment, because the employer is required to ~

justify the adverse impact of the rule on an excluded class, not merely on a ~. particular job applicant. The outcome of this legal process is in effect to require h the employer to consider the possibility of affirmative action for a group. not in f the sense of adopting quotas, but in the sense of adjustments to the business to t enable members of the excluded group to obtain employment. f

Although these examples reveal the close parallel in reasoning between the kind . of positive action required by the principle of social inclusion and the operation of the employer'S justification defence to claim of indirect discrimination, the match between the current law and the implications of the aim "f 'oncia) i"L']u,ion j, not exact, The central difference concerns the potential width ,'~ I:\,tiiicatil>ils I'Oi'

indirectly discrimin.uor, rules Under the social inclusion principle. It .,11(,\lIJ be

73 f!ampStJ1! \' Dcpurtmc»: (~f Dlw'{il:::;; ulid S([('.'1(,(, !lq~9] ICR 179 CA. Thi-, 1C-"'\ \~:i' ,tp\lf\ly(\1 .·~l\~. described as an application of the EC test of propur tiona IiI) by Lurd Nicholls in burr: \ i\fl(fi~lli('t flunk I'll' [199J ICR 859, HL 870, and by Sedley LJ in Alionbv v Accrington an.l Ros-rnrla!« ('ol!egc [2001J ICR 1189 CA 1200. though there seems 10 he a clear difference between a test "I necc"lll "..,rl '-l Tn ..... '" j..."L, - " :,r" •

7.:l P S. Karlen and··(i·Ru~h~·;;i;~~-'nlsabilitlC'l,Discriminarion. and Rcasonulvlc An:ommndaulm' (1'J%) 46 f)"k, LI\\'.I 1. 12 (. J\)\b, ·-"1111~1\;.,crill~in~lth;i ,lll,J :\u-'.II''.l111Ud:lliCJ\l' CUnl} \ \~ Ifill • r n; I -r. S Frcdrn.n.. ahn\c n HI, 31b _~1~.

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possible to justify a rule with indirect discriminatory effects if the rule helps to ~:i .~ L' ., reduce social exclusion. Thus the justification defence is not confined to business b}

considerations such as cost, but can include the broader social objective of k~~pr..reducing social exclusion, For example, in Northern Ireland, Where one effect ,. of practices of religious discrimination has been a disproportionate level of unemployment among the Catholic community, the legislation provides a ~~~!~;justification defence for hiring rules that give preference to unemployed persons, even though such rules almost certainly discriminate indirectly against the .tit

4iiProtestant community."? This special provision is required because under the ~ii

current anti-discrimination laws the employer can only justify indirectly ~f' discriminatory rules by reference to business considerations rather than broader Isocial objectives. f!~

As this last example reveals, not every [egaI expression of the duty of reasonable adjustment confers a broad discretion on the courts. In some instances the requirements of re:I>ollable adjustment have been closely stipulated by PJr1i'lment. For instance. maternity and parental leave rights, which impo,e :1 cost on employer. to ndiust to thc need, of i1Ci" parents, have closclv defined parallleters

Ii and entitlel11cnts. ( ' The further duty to accommodate parents' need for time off work to dea I with family emergencies is more loosely defined by a standar.] of rcasonablencssf" These 'family-friendly' measures can be regarded as a determination of the requirement of reasonable adjustment for parents. with their underlying goal being in part the reduction of social eXclusion.

Priority not equality ~ t. <The preceding sketch of the architccturs of anti-discrimination la\\'s based 011 a t'goal of social inclusion has emphasised four features. First. the primary target of Dsocial inclusion is the alloca.inr, of jobs to groups that suffer !,c,'sistent •

disadvantage in the labour market. These groups can be identified by reference ~ ,,to one or more citcri<:, none of which need refer to unalterable or 'status' ,. characteristics. Secondly, proof of discrimination should depend UPUI1 evidence of (

disadvantage combined with membership of one of the protected groups. without t the further need to prove cornpa rauv- greater disadv antage than other c'IOUps. Thirdly, dnti-discri1l1inatiol laws that pursue the goal of s()cial Illc!c:,i,'n 'hnllld. however. pcrmn :1 broad justir'cauon dcCcr;c;e t(, both diIL'l' .rnel 1I1liJrc,'! discrimin;"Il'Ii. l!l,w"h IhL'jll'IJ!icati,'n I11lht cuhcr l',',t IT''l1thl' :~."l; ,••'mh:"t ,

,oeia] e\L'!lhl'.", l" 1, ,i.d,!! th.it tile lblilmillaln)\ r ul; rLii\ C'C!Ul!c' i'i' [",'npk who could :,,'1 1<1 ke :JIh ant aft' 01...he employment opportuni t\ , FI11:1 I;;, . thL' :C'1:1I ,)1 social inell1,ir'l1 lll:'nd:IL'" f,"nn "fpl)>\ti\'e dL'lin!l th.i: c.m he de'll!kd.h" dut,of rea,UI1;If1h: adju-uncru

My brief sketch of the feature, of :llltl-discrimlJ1i1tlon h,\\o ba,c'cj Uj1LJIl :1

principle of sn,i,11 i",'III'ioll hG<; not addre"ed many feal:lrc' of the current ,.J\\"

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janUary 2003J Discrimination, Equality and Social Inclusion [Vol. 66 The Modern Law Review

appropriate remedial strategies that involve giving priority or preference to and proposals to amend them. The discussion could be extended 'in many excluded groups. But does this concern with priority rather than equality entail an directions with suggestive results. For instance, the most recent innovations in abandonment of the equal treatment principle?discrimination laws, which have been described as 'fourth generation duties' ,82 It is certainly compatible with the aim of social inclusion to argue that equalimpose positive duties on public sector bodies to take steps to improve equality.83 The official justification for these positive duties is framed in terms of some notion of equality, such as fair equality of opportunity or more equal results. As Fredman argues, however, 'an important dimension of fourth generation equality laws is their J:lotential to encourage participated groups in the decision-making process itself,.84 There are many possible explanations for this emphasis upon participa-'", tion by disadvantaged groups in determining the content of positive duties. A 'f:! participatory process may contribute to democratic governance, a point stressed in European Union measures,85 or it may help minorities to express how their, 'difference' should be rcspected 8 6 But ideas of equality do not seem to require ". such an emph~sis on participation of minorities in the formulation of public policy. In contrast, the goal of social inclusion does emphasise the contribution of parti,:ipatioll in public life as a contribution to 'well-being', so this element in the strategy of the development of positive duties fits into a social inclusion principle.

During the course of this analysis, we have compared the equality justifIcations for current anti-discrimination laws with the implications of the justification based upon social inclusion. In some respects, but by no means all, I have argued that the social inclusion justification provides a more coherent explanation of the legal framework. My argument is not that a social inclusion justification provides a complete interpretation <if the current laws. Such a claim is implausible given the influential role that the notion of equality has played in the construction of the legislation. Where the potential influence of social inclusion can be detected is . rather in accounts of when the law permits or requires different treatment rather than equal or the same treatment. In short. social inclusion provides a goal for the rt legislation that supplies a justification in particular instances for departures from

the general rule of equal treatment.Returning to our initial lormulation of the problem of identifying the aims of

anti-discrimination laws, social inclusion offers a distributive goal that answers the question when is it fair to require equal treatment and when is it fair to require: different treatment. The answer is that deviations from equal treatment are <,

required in order to achieve the distributive aim of social inclusion. This aim requires prderellCf' or priority to be given to member' of a particular group, if the ~roup c.m be' classiiied :1'; ,,)e':~ilh excluded The' prefcrcio:iilnp .surcs required are those lhat will C1Jlllrihllle le' the reduction of <ocial cxclusu-r;

The di,tributiH' aim of <oci.tl incfu-iou a\ oids any drrcct e<1i,ncctiun with a di,;tributive goal tr.uncd 111 terms <11' cqualit\. It neither ,;ceks equalJt) of welfare nor cquulity or ,'pportuniiy tlwu:;\1 11f cour-c a succcssrul policy of social inclusion would make a ,(Klety more equal in both respects. The aim of SOCial , inclusion IS rather to construc'l a conception u( unfairncs« in results, and to sugge"t t ,:: II l!epple.!'v1. C"""") and I ;~ '\\\1 i-, lrc-l.u...' Vi \.)q"

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treatment should apply as the normal rule. Social exclusion is often the result of unequal treatment, so that a requirement of equal treatment often serves to address the problem. In the light of our earlier discussion, however, does this explanation of using equal treatment as a rule of thumb attribute sufficient weight to the principle in view of the force attached to it in anti-discrimination legislation? I doubt that this explanation of the role of the equal treatment principle could succeed, though my argument has never required that it should.

. ·The reason for introducing the aim of social inclusion into the account of the aims of anti-discrimination legislation was to find a solution to the puzzle of why difTerent treatment was sometimes required or permitted. My argument was that a notion of distributive justice was needed for such an accou nt. Social inclus i on provides such a theory of distributive justice. one which is not so ambitious as to cast doubt on maintaining equal treatment as the normal rule, but which a lso explains when and why deviations from the normal rule should be required or permitted. The continuing importance of the principle of equal treatment as an aim of the law is not abandoned as a result of recognising a distributive aim of social inclusion. Even so, we still require an explanation of why so much weight seems to be attached to the equal treatment principle, such that any deviation has to be carefully justified under tests of proportionality and the like.

My surmise is that equal treatment has been accorded such importance in anti ­discrimination laws for two reasons. First, equal treatment is the normal rule required by the separate principle of respect for individual dignity or equal worth. We observed earlier that equal worth sometimes requires respect for difference, but we should not ignore how it also supports in most instances a requirement of equal treatment. This principle of equal respect is expressed by article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: 'The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority. property, birth or other status.' The independent value of respect for individual dignity thus strengthens the \\ eight to k attached (0 the value of equal treatment.

A second reason whv eqUi,1 treatment h.i-. been c'll ell sllc'h P;,JJl1lllell! ['(lk ill ,l

the legislation is that the principle ha, 1110\ idee! a d,'f1\iil.:':; cun,lil uuon a! principle within Western Ic!,:~d systems. A legal '\SICIll. which ha, achieved autonomy fr0111 the political and economic svstcm-. has it, illd':I,,'r1lh'nt dcman d­of Iair process, of evidence and proor. 01 remedial .icviccs. or lcg.tl jusuticatio n. and, in general. of preservation or the integrity of !IS system.'

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~t'equal protection of the laws' or 'treat like cases alike' represent fundamental

'or, operational principles of these legal systems. The significance of t his legal ~

framework is that whenever political goals have to be incorporated into law, ;1the legal system must accommodate them within its own operational principles. The political goal behind anti-discrimination legislation becomes translated in the f operations of the legal system as a rule that like cases should be treated alike. In other words, the legal system has its own independent values or communication system, which place constraints on how political goals can be pursued through its mechanisms, Whatever the political aim behind anti-discrimination legislation, jwhether it comprises equality of results, equality of opportunity, or social inclusion, that aim has to be modified to comply with the principle of equal J treatment in order for it to be accommodated with integrity within the legal svstem. J. A combination of these two reasons probably explains sufficiently why the anti ­ ,,

discrimination legislation attaches such great weight to the principle of equal " treatment. The significance attached to equal treatment by the principle of equal respect and the integrity of the legal system can provide an explanation lor why the anti-discrimination laws depart from the architecture suggested by the distributive goal of social inclusion. For instance, it was noted earlier that aim of t

social inclusion does not explain why white males should receive legal protection f against discrimination, assuming that they arc not an excluded group, We can i appreciate, however, that the symmetrical pattern of many discrimination laws ~ responds to the requirements of the principle of equal worth and the demands of .~. integrity of the legal system. •

Returning, finally, to the question posed at the outset - what are the aims of ~.

anti-discrimination laws? - my argument suggests that as well as upholding the f ideal of respect for the dignity of individuals or equal worth, the legislation also f must be understood as pursuing a distributive aim in order to account for I deviations from the equal treatment principle. I have argued, though certainly not ~ conclusively, that this distributive aim or criterion of fairness mav be discovered in t the aim of social inclusion. Although the current law does not fit precisely with the • principles suggested by the aim of social inclusion, the match is closer than might be initially supposed, and in several respects the aim of social inclusion explains features of the law that seem hard to account for by reference to other possible f distributive aims such as equality of opportunity. III r-articul.ir. the aim of social 1 ilH:iusion suggests a more dctcrmin.uc standard for' 1,.-. k~J1;l'.~;.: '\ or positive action th.m ,;" ~c.,::. '.,f 'proportion.ility' or ',lIict Xfh ...' I: '~,',·,·,I', Ihal

deviation, from equal treatment should be PLTI11itted \\1-,,". ,'! ""11[:'<101')'

measure is necessary to achieve the result of social inclusion I", In, ·h5S of a l!roup that arc presently largrlyexcluded,

Moreover, an appreciation of the aim of social inclusion m,,) ]1' ,1\ Ilk ,il1 Ithlght

into the reasons why we may have reservations about some asp.'':h ,;f the current LIW, For instance, remember .L'nu-, v Eastlcigh 110,,01lgh tounci), ihc case concerning free entry to a swimming pool. Although the 111,1:"r1{\ "f I hl' HnUSl' of ; nrd", n-'gardc-d the prol-lcn: ~1S a siln!']e C:.l\C nfdirccl di'~c!IJjji~, h~·"!u.~,.: 'hut i,q-' his sex ~ir .l.unc ; \\',:'u~d lJ;~\;C h~Hi ,J ii"l.:C \";'1,1. t~il~' " .Ioubt \\hc!h:! the "11"'. (11:,,' b\',' inL:!!,·je-d !"'1l,\'\q1~ !"ll '):,'. ,1.

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majority believed that ultimately the equal treatment principle provided an exclusionary rule that prevented any justification of direct discriminatioil, The aim of social inclusion explains why that question should have been relevant, and why a deviation from the equal treatment rule may have been justified In this instance. This exercise in examining the aims of the anti-discrimination laws in the light of the idea of social inclusion is not therefore merely an exercise in mapping, of interpretation, or of rationalisation, but it is also intended as a critical exploration of the assumptions and limitations of these laws.

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