Direct or Indirect Discrimination: Same Difference?
Should a finding of indirect discrimination be sanctioned in the same way as a finding of direct discrimination? A recent case confronted the Belgian Constitutional Court with precisely this question. It was asked to consider whether an anti-discrimination law according the same legal effects to a finding of direct and of indirect discrimination creates unconstitutional discrimination. Revisiting the relationship between intent requirements and anti-discrimination law, the Court held that it did not.
The question raised concerned the fixed compensation determined in Article 28, §2, 2° of the Flemish Equality Decree which determines the penalty imposed after a finding of discrimination (except for the areas of employment and supplementary social security regimes, cf. Article 28, §2, 1°). The article stipulates that damages have to be paid by the discriminator: either a fixed sum or a sum corresponding to the actual (proven) damages. Importantly, the Article determines this ‘in case of discrimination’, not distinguishing between direct and indirect discrimination. According to the defendant parties in a discrimination case before a lower court this treated different situations equally and was thus unconstitutional discrimination (violating Articles 10 and 11 of the Belgian Constitution). The lower court referred this question to the Constitutional Court, which held article 28, §2, 2° to violate the constitutional equality guarantee (Articles 10-11 Belgian Constitution).
Broadly speaking, the Decree defines direct discrimination as less favourable treatment based on (one or more) protected characteristics and indirect discrimination as disadvantage to people with (one or more) protected characteristics that can result from a prima facie neutral provision, criterion or practice (cf. Article 16). Both definitions add ‘unless it can be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’ (except for the areas where EU Directives and/or international law require a stricter test).
Invoking the substantive equality aspect of the constitutional equality guarantee, the requesting parties claimed that direct and indirect discrimination concern different situations and thus require different treatment. The primary difference between the two types of discrimination allegedly lies in the importance of intention. According to them, while direct discrimination concerns intentional discrimination by the discriminator, indirect discrimination concerns seemingly neutral actions with unintentional discriminatory effects. Indirect discrimination thus happens ‘by accident’. They also claimed this to have a different effect on the victim, i.e. a difference grounded in being directly targeted vs. indirectly hindered by the social reality.
The requesting parties seem to assume that people can only be blamed for (and therefore held liable and responsible for) discriminatory behaviour if they intended to discriminate. This assumption is far from uncommon. According to Khaitan, it is this intent to discriminate that is fundamental to the layman’s perception of discrimination. A concept of indirect discrimination, starting from seemingly neutral actions resulting in (unintentional) discrimination, does not sit easily with this perception. To some extent, anti-discrimination laws reflect this moral divide. For example, in many jurisdictions it is significantly more difficult to justify direct than indirect discrimination. Similarly, many jurisdictions stipulate less harsh remedies for cases of indirect discrimination. The line taken by the requesting parties is thus not unique.
In its judgment, however, the Belgian Constitutional Court took a different tack, subscribing instead to the growing emphasis in anti-discrimination law on effects rather than on intention when finding liability. Referring to its own prior case law and cases at EU-level, it stated that (liability for) neither form of discrimination requires proving intent or another form of motivation on the discriminator’s part. The Court pointed to the dual legislative intention underlying the Decree’s prohibition of indirect discrimination. While this prohibition does aim to combat unintentional discrimination, it is also aimed at practices where the discriminator uses a seemingly neutral criterion while knowing and aiming to achieve a discriminatory effect. Indirect discrimination then can also be intentional. For both types of discrimination, the Court continued, the effect on the victim, not the intent of the discriminator, is decisive for liability questions. As the Court considered the two types of discrimination to be relevantly similar, it did not find an unconstitutional discrimination. As societal debate on discrimination continues, this judicial clarification is to be welcomed.