Distinguishing Between Direct and Indirect Discrimination

This article critiques two commonly discussed ways of understanding the distinction between direct and indirect discrimination. On the first, direct discrimination is intentional, whereas indirect discrimination is unintentional. On the second, direct discrimination applies where the discriminator (D) singles out the complainant (C) for differential treatment on the basis that C possesses a protected characteristic. By contrast, indirect discrimination applies where D acts on a provision or criterion that is neutral on its face (ie makes no reference to a protected characteristic). The article then offers an alternative understanding of the distinction, whereby direct discrimination occurs where D treats C adversely, and regards C's possession of a protected characteristic as a factor in favour of according that treatment. By contrast, indirect discrimination occurs where D instead acts in a way that disproportionately disadvantages members of a group, to which C belongs, distinguished by the members' possession of a protected characteristic.