Indirect Discrimination

Abstract

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

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