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Indirect Discrimination by Association
The ECJ has confirmed that an individual could pursue a claim of indirect discrimination, even though the Claimant did not share the protected characteristic (in this case race) of others suffering a detriment. This could give rise to significant implications for UK law, and could even require some redrafting of the Equality Act 2010.
The concept of discrimination by association is not a new one. It has been some years now since the ECJ extended the protection against discriminatory conduct by finding that an employee had been the victim of discrimination by association. In that particular case (Coleman v Attridge Law) the Court found that an employee, who suffered from no disability herself, had been singled out for discriminatory treatment because of her son’s disability.
However, this protection was limited to claims of direct discrimination and harassment. Indeed, the wording of section 19 of the Equality Act actually appears to expressly prohibit the concept of associative discrimination being extended to claims of indirect discrimination given that it says:
“A person (A) discriminates against another (B) if A applies to B a provision criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.”
In other words, a Claimant must first establish that they hold a relevant protected characteristic before that can pursue their claim for indirect discrimination.
In their judgment last week, the ECJ in Chez Razpredenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia confirmed that this starting requirement was not necessary.
The Claimant ran a shop in a district of Bulgaria predominantly populated by people of Roma descent and ethnicity. She is not Roma herself. She presented a claim against an electricity company who fitted electricity meters in the area and around the country. In many districts, the company fitted meters at a height which allowed users to monitor their own usage. However, in the areas where the Claimant lived, the meters were fixed at a height of 6 meters. The company argued that this was a direct result of a number of cases of people tampering with the meters in that areas, or illegally connecting to the electricity supply. The Claimant argued the practice of fitting meters in her area so high, and preventing people from monitoring their electricity use had a disproportionate affect upon the Roma people. She also claimed that although she was not Roma herself she identified with the people of the district and endured the same disadvantage.
The ECJ accepted that the Claimant should be allowed to pursue the claim. Although the Court never used the phrase “discrimination by association” or “associative discrimination”, they accepted that Roma ethnicity was the reason that the Claimant had suffered a particular disadvantage. Irrespective of the fact that she was not Roma herself, she shared the same disadvantage, and should be afforded the same protection from the discriminatory act.
At present, s.19 of the Equality Act, which requires a claimant of indirect discrimination to possess the protected characteristic giving rise to the discrimination, remains in force. However, if the ECJ sees this as the correct interpretation of EU legislation that is it quite possible that the Equality Act could be challenged for being incompatible which, in turn, could require an amendment to the law.