A very short primer on anti-discrimination law

On an earlier thread we were discussing a case where parents of school children in Victoria failed to stop the provision of devotional religion classes in public schools. As I acknowledged on that thread, I haven’t read either the original case or the failed appeal case, so any analysis from me might not match those of the tribunal members and judges involved. Still, I am not surprised by the outcome. I was following this case – at some considerable remove – and I always thought it was a rather tenuous one when packaged as an anti-discrimination claim. I don’t know whether there is any further appeal available (i.e. I’m not sure whether a case like this could get to the High Court of Australia); but if there is, quite a lot of ingenuity will be needed if there’s to be any possibility of a better outcome for the complainants.

The reason the case was always going to be difficult is that it just doesn’t fit neatly into the paradigm situations covered by anti-discrimination law. For some, that may be a bitter pill to swallow, but I think there’s a tendency for many of us to forget that anti-discrimination in its classic sense is a relatively narrow solution to a fairly specific and definable class of problems. A good place to start is to point out that anti-discrimination law does not make everything that could be called “discrimination” illegal. It preserves the background where I can discriminate in all sorts of ways in my private decisions. For example, nothing in anti-discrimination law requires me to be non-discriminating or unprejudiced in my choice of friends, lovers, personal associates, invitees to dinners and parties, etc., or even my associates in small commercial ventures (such as co-authors of books). If I have (doubtless irrational) preferences for people of a certain sex, race, ethnic background, etc., I may act on them in these ways. I can discriminate as much as I like in refusing to establish personal friendships, have love affairs, engage in small ventures, etc., with, say, people of a certain biological sex or racial appearance.

And I may certainly discriminate on all sorts of other grounds, such as general appearance, sense of humour, common interests (or otherwise), etc., etc. Anti-discrimination law leaves me with enormous scope to discriminate for and against people on a vast range of grounds in a vast range of situations.

So what does anti-discrimination law do? Anti-discrimination law essentially prohibits discrimination against people on certain specified grounds that are considered by the lawmakers to be especially invidious and socially destructive, and in certain specified circumstances. For example, it typically prevents women being discriminated against in employment, such as when decisions are made to hire, fire, or promote. Given entrenched prejudices against women as employees, this seems like a reasonable step toward giving women equal opportunities in the workplace. Relevant provisions are usually framed in terms of “discrimination on the ground of sex” (or similar words), but the social reality (and the historical context of the law) is that it’s far more likely to be women than men who are discriminated against.

So anti-discrimination law is aimed at, among other things, the paradigm situation of an employer refusing to employ or promote someone on the ground that she’s female – or firing someone because she is female. Other paradigm situations include refusing to serve someone in a bar on the ground that he or she is Aboriginal, or to refusing to rent a house or flat to a couple on the ground that they’re not married, or refusing to enrol someone at a school or university on the ground that she is from a particular ethnic background. In all cases, these are important decisions being made about people – decisions that can have very adverse effects on their lives – by others who wield a degree of private power.

Anti-discrimination law, then, will specify certain forbidden grounds (such as sex, race, marital status, or ethnicity) for discriminating against people in specified settings (such as employment, provision of goods and services to the public, housing, and education). In some jurisdictions, the list of forbidden grounds may get quite long, as may the list of relevant settings. Still, to succeed in court you will need to show that you were discriminated against on one of those specific grounds and in one of those specific settings. There will still be many situations where private acts of discrimination are lawful. As I say, anti-discrimination law is quite targeted at what it tries to remedy. It certainly does not try to turn us all into good non-discriminatory people in our private lives, although it does tend to send out a message that an attitude of prejudice against the classes of people concerned is deplorable.

On the gripping hand, we’re at liberty to ignore that message except where the law has prohibitory effect.

As a complication, the law has a concept of indirect discrimination. Thus, I may have no policy of employing only men, and thus discriminating against women. But what if I have a policy of employing no one who stands under, say, five foot eleven/180 centimetres? Clearly, I am introducing a requirement that will be met by a quite large proportion of men but by only a very small proportion of women. This might be a contrivance that I have introduced to keep women out of my workforce, or it might be just an arbitrary requirement that I’ve introduced with the same effect (even if it wasn’t my intention). Either way, anti-discrimination law in the relevant jurisdiction will prohibit such a requirement (usually with the availability of a defence that, for some operational reason, I really do need people above a certain height for certain roles in my workforce). Although there can be many statistical issues in indirect discrimination cases, the general idea is quite intuitive and is quite a logical extension of the ordinary “direct discrimination” cases.

Note that this classic form of anti-discrimination law may leave a lot of quite nasty discriminatory behaviour untouched – hence, in many instances, the need that legislatures feel to enact statutes banning hate speech, among other things. Hate speech is often a private act that “ordinary” anti-discrimination law does not forbid.

Anti-discrimination law comes with many extensions, many exceptions, and many grey areas. Still the basic idea is quite simple – you can’t discriminate against people on certain invidious grounds (perhaps most obviously, race and sex) in certain prescribed circumstances (most obviously, employment). This leaves you free to discriminate in all sorts of other ways in all sorts of settings, even if the grounds are quite invidious. That may seem unfortunate in some ways – much unpleasant behaviour is left as perfectly legal – but then again, how intrusive do you really want the law to be?