Inadequate Legal Protection
The Problem of Under-Inclusive Grounds of Discrimination
The current anti-discrimination legislation in the United Kingdom is under-inclusive as the list of prohibited grounds of discrimination fails to include that disadvantage that all potential claimants have suffered. If a particular ground is not prohibited, then justice cannot be adequately served and the claimant may not be awarded the remedy that they deserve.
Under-Inclusive Grounds
Although bearing in mind that the facts took place before the coming into force of the Employment Equality (Sexual Orientation) Regulations 2003, the case of Pearce v Governing Body of Mayfield School (2001) demonstrates how a claim can fail when a ground of discrimination is not adequately recognised by the legislation.
Pearce was a teacher who was subjected to taunts and threatening behaviour concerning her sexual orientation. She brought a claim alleging both sex discrimination and discrimination on the grounds of sexual orientation. At that time, discriminating against a person based on their sexual orientation was not forbidden by UK law and so Pearce reformatted her claim to allege solely sex discrimination. The failure of the legislation to recognise her particular situation provided a difficulty for Pearce’s claim from the outset since she immediately suffered a lack of redress for what was undoubtedly discriminatory treatment.
The Court of Appeal in fact dismissed Pearce’s claim on the grounds that they were bound by the previous decisions in R v Ministry of Defence ex p Smith (1995) and Smith v Gardner Merchant (1999) which decided that, for the purposes of the Sex Discrimination Act, ‘sex’ did not include sexual orientation. It was said that use of gender-specific words such as ‘lesbian’ is not sufficient to prove less favourable treatment on the basis of sex.
Lack of a Remedy
In Pearce’s case, anti-discrimination legislation provided no remedy for the discrimination she faced based on her sexual orientation.
Further, this failure of the legislation to provide protection against discrimination based on sexual orientation actually contributed to the failure of Pearce’s sex discrimination claim as the Court focused on the fact that the abuse she suffered was due to her being a lesbian and so decided that the discrimination was due to sexual orientation, which they could not protect against, rather than sex, which they could protect against.
If the Court had chosen to follow previous decisions which stated that comments of an overtly sexual nature can form the basis of sex discrimination, whether or not they would have also been made to a man, then Pearce’s claim may well have met with success. The abusive comments aimed at Pearce were certainly of an overtly sexual nature and so it does seem reasonable to suggest that her claim failed specifically because she was a lesbian and that if a straight woman was subjected to the same variety of abuse, she may well have succeeded in a claim of sexual discrimination.
Positive Legislative Development?
The Employment Equality (Sexual Orientation) Regulations 2003 are now in place in the UK to protect people who suffer discrimination based on sexual orientation and so the initial hurdle to Pearce’s claim has been removed.
However, a similar situation could indeed crop up if a person suffered discrimination that is not included within the scope of current legislation and they would find themselves in the same difficult situation that Pearce did, with either their particular ground of discrimination not being protected or with the Court’s deciding that the particular discrimination in question does not come within the scope of the relevant legislation.
Further, although sexual orientation is now a recognised ground of discrimination, any person claiming that along with another ground (such as sex or race) could well find themselves in a situation where a condition or requirement may not have a disproportionate effect black gay men or white lesbians but could have an obvious adverse effect on black lesbians that the current structure of the legislation is unable to deal with.
