DISCRIMINATION BY ASSOCIATION- the Coleman case

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DISCRIMINATION BY ASSOCIATION- the Coleman case

• (Equinet Legal Seminar-
• European Concepts of Equality- Role of the ECJ.)
• Paul Michell
• 30.6.09, Brussels
• pm_at_cloisters.com

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Associative discrimination Coleman

• What is associative discrimination?
• A ? B (--- C)

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Associative discrimination Coleman

• European Provisions
• Framework Directive 2000/78/EC (sexual
  orientation, age, religion or belief, or
  disability)
• Directive 2000/43/EC (racial or ethnic origin)
• Directives 2002/73/EC 2006/54/EC (sex)

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Associative discrimination Coleman

• Is associative discrimination prohibited under
• EC law?
• Coleman v. Attridge Law (Case C-303/06).
• 2008 IRLR 722.
• C was principal carer for disabled son.
• C was not disabled.
• C claimed disability discrimination less
  favourable treatment and harassment on grounds of
  her sons disability.

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Associative discrimination Coleman
Disability Disability Discrimination Act
1995 3A A person directly discriminates against
a disabled person if, on the ground of the
disabled person's disability, he treats the
disabled person less favourably than he treats or
would treat a person not having that particular
disability whose relevant circumstances,
including his abilities, are the same as, or not
materially different from, those of the disabled
person 3B a person subjects a disabled
person to harassment where, for a reason which
relates to the disabled person's disability, he
engages in unwanted conduct which has the purpose
or effect of-- (a) violating the disabled
person's dignity, or (b) creating an
intimidating, hostile, degrading, humiliating or
offensive environment for him.
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Associative discrimination Coleman

• Interpolation?
• Pfeiffer and others v Deutsches Rotes Kreuz,
  Kreisverband Waldshut eV 2005 1 CMLR 1123,
  ECJ.
• when it applies domestic law, and in particular
  legislative provisions specifically adopted for
  the purpose of implementing the requirements of a
  Directive national law is bound to interpret
  national law, so far as possible, in the light of
  the wording and the purpose of the Directive .
  

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Associative discrimination Coleman

• Advocate General Maduros Opinion
• Draws on the language of US constitutional law.
• Centred on human dignity and personal autonomy
  as values at the core of the non-discrimination
  rule.
• One way of undermining the dignity and autonomy
  of people who belong to a certain group is to
  target not them, but third persons who are
  closely associated with them.
• The dignity or autonomy of a disabled person is
  affected as much by being directly discriminated
  against as by seeing someone else suffer
  discrimination merely by virtue of being
  associated with him.

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Associative discrimination Coleman

• Showboat Entertainment Centre v. Owens 1984 1
  WLR 384.
• (Complainant dismissed for refusing to exclude
  all black customers from an entertainment
  centre.)
• J Browne-Wilkinson
• The only question in each case is whether the
  unfavourable treatment afforded to the claimant
  was caused by racial considerations

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Associative discrimination Coleman

• Judge Peter Clark in Coleman 2007 IRLR 88 EAT
• DDA
• is capable of interpretation, consistent with
  an interpretation of the Directive favourable to
  the Claimant, so as to include associative
  discrimination without distorting the words of
  the statute and consistent with the domestic
  Courts responsibility to arrive at a conclusion
  which ensures that the Directive is fully
  effective, as Parliament presumably intended when
  passing the 2003 regulations

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Associative discrimination Coleman

• 3A(5) A person directly discriminates against a
  disabled person or a person associated with a
  disabled person if, on the ground of the disabled
  persons disability, he treats the disabled
  person or a person associated with the disabled
  person less favourably than he treats or would
  treat a person not having that particular
  disability or association (as the case may be)
  whose relevant circumstances, including his
  abilities, are the same as, or not materially
  different from, those of the disabled person or
  the person associated with the disabled person.
• 3B(1) a person subjects a disabled person
  or a person associated with a disabled person to
  harassment where, for a reason which relates to
  the disabled person's disability, he engages in
  unwanted conduct which has the purpose or effect
  of-- (a) violating the disabled person's
  dignity or the dignity of a person associated
  with a disabled person, or (b) creating an
  intimidating, hostile, degrading, humiliating or
  offensive environment for him.(2) Conduct shall
  be regarded as having the effect specified in (a)
  or (b) of subsection (1) only if, having regard
  to all the circumstances, including in particular
  the perception of the disabled person or (as the
  case may be) a person associated with the
  disabled person, it should reasonably be
  considered as having that effect..

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Associative discrimination Coleman

• Interpolation?
• Ghaidan v. Godin-Mendoza 2004 AC 557. HL.
• Section 3(1) of the Human Rights Act 1998
• so far as it is possible to do so, primary
  legislation and subordinate legislation must be
  read and given effect in a way which is
  compatible with Convention rights.

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Associative discrimination Coleman

• Lord Nicholls
• the mere fact the language under consideration
  is inconsistent with a Convention-compliant
  meaning does not of itself make a
  Convention-compliant interpretation under section
  3 impossible. Section 3 enables language to be
  interpreted restrictively or expansively. But
  section 3 goes further than this. It is also apt
  to require a court to read in words which change
  the meaning of the enacted legislation, so as to
  make it Convention-compliant. In other words, the
  intention of Parliament in enacting section 3 was
  that, to an extent bounded only by what is
  "possible", a court can modify the meaning, and
  hence the effect, of primary and secondary
  legislation

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Associative discrimination Coleman

• Equality Bill
• Section 4 Protected characteristics are age
  disability gender reassignment marriage and
  civil partnership pregnancy and maternity race
  religion or belief sex, and sexual orientation.
• Section 13(1) A person (A) discriminates
  against another (B) if, because of a protected
  characteristic, A treats B less favourably than A
  treats or would treat others.

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Associative discrimination Coleman

• Other issues arising from Coleman
• Discrimination by perceived disability etc.

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Associative discrimination Coleman

• ECJ
• 50 Although the person who is subject to
  direct discrimination on grounds of disability is
  not herself disabledit is the disability which,
  according to Ms Coleman, is the ground for the
  less favourable treatment which she claims to
  have sufferedThe Framework Directiveseeks to
  combat all forms of discrimination on grounds of
  disability in the field of employment and
  occupation, and applies not to a particular
  category of person but by reference to the
  grounds mentioned in Article 1

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Associative discrimination Coleman

• English v. Sanderson Blinds 2008 EWCA Civ 1421.
  CA.
• Sexual Orientation
• 3(1) a person (A) discriminates against
  another person (B) if, on grounds of sexual
  orientation, A treats B less favourably than he
  treats or would treat other persons.
• 5(1) a person (A) subjects another person
  (B) to harassment where, on grounds of sexual
  orientation, A engages in unwanted conduct which
  has the purpose or effect of
• (a) violating Bs dignity, or
• (b) creating an intimidating, hostile,
  degrading, humiliating or offensive environment
  for B.

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Associative discrimination Coleman

• English v. Sanderson Blinds
• Laws LJ
• Domestic and European law alike vouchsafe that
  harassment or discrimination on grounds of
  sexual orientation or race or disability is not
  limited to situations where the victim is
  mistreated because of his or her own
  conditionthough no doubt that is the paradigm
  case. But the extended instances- Showboat
  here, Coleman in Luxembourg- are all connected
  with someones actual, perceived or assumed
  condition. They are all examples of harassment
  or discrimination on grounds of (someones)
  sexual orientation, race or disability that
  condition was, in each case, an operative cause
  of the mistreatment in question.

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Associative discrimination Coleman

• English v. Sanderson Blinds
• Laws LJ
• unwanted conduct relating to sexual orientation
  etc. even if it does not touch or engage the
  possession of any of those characteristics by any
  personwould amount not to a Pandoras box, but a
  Pandoras attic of unpredictable prohibitions
• Sedley LJ
• If, as is common ground, tormenting a man who
  is believed to be gay but is not amounts to
  unlawful harassment, the distance from there to
  tormenting a man who is being treated as if he
  were gay when he is not is barely perceptible.
  In both case the mans sexual orientation, in
  both cases imaginary, is the basis, that is to
  say, the ground- of the harassment the
  casecomes within the legislative intent, both
  domestically and under the Directive the
  claimant was being harassed on grounds of sexual
  orientation.

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Associative discrimination Coleman

• Disability
• Chacon Navas v. Eurest Colectividades SA 2006
  ECR I- 66467
• 42 the concept of "disability" for the purpose
  of Directive 2000/78 must be given an autonomous
  and uniform interpretation.
• 43 Directive 2000/78 aims to combat certain types
  of discrimination as regards employment and
  occupation. In that context, the concept of
  "disability" must be understood as referring to a
  limitation which results in particular from
  physical, mental or psychological impairments and
  which hinders the participation of the person
  concerned in professional life.
• 44 by using the concept of "disability"the
  legislature deliberately chose a term which
  differs from "sickness". The two concepts cannot
  therefore simply be treated as being the same.
• 45 In order for the limitation to fall within
  the concept of "disability", it must therefore be
  probable that it will last for a long time.
• 46 There is nothing in Directive 2000/78 to
  suggest that workers are protected by the
  prohibition of discrimination on grounds of
  disability as soon as they develop any type of
  sickness.

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Associative discrimination Coleman

• The Americans with Disabilities Act 1990
  (section 12102)
• an individual meets the requirement of being
  regarded as having such an impairment if the
  individual establishes that he or she has been
  subjected to an action prohibited under this
  chapter because of an actual or perceived
  physical or mental impairment whether or not the
  impairment limits or is perceived to limit a
  major life activity.