Selecting a Comparator
What Should the Claimant's Treatment Be Judged Against?
Since it is of fundamental importance in law that like persons must be treated alike, anyone wishing to bring a claim of discrimination must be able to demonstrate that they suffered where a person of exactly the same qualities or qualifications but for the one relevant factor would not have suffered. The person that the claimant's situation must be judged against is known as the comparator.
However, the selecting of an appropriate comparator can be a difficult business with two notable problems being identifiable: first, that the Courts may on occasion end up considering factors in a comparator that are not really relevant to the claim at hand; and, secondly, that principle of treating like persons alike may not even always be appropriate in cases of direct discrimination.
The Factors Considered
The possibility of Courts considering irrelevant factors is demonstrated by the case of Secretary of State for Defence v MacDonald (2002), where an officer was forced to resign from the Air Force after admitting that he was a homosexual and so brought a claim of sex discrimination. In this case, the Court of Session stated that the proper comparator to MacDonald would be a lesbian employed by the Air Force and so, as a lesbian would also have had to resign if commanding officers became aware of her homosexuality, his claim of sex discrimination failed.
It was the fact that MacDonald’s homosexuality was treated as being a relevant factor in the case that mean his claim failed. If the Court had taken a different approach and had taken the comparator as being a straight woman who had taken a male partner then it seems obvious that MacDonald’s claim would have been successful since a woman would not have been forced to leave her job because she had a male partner. This seems a rather contrary outcome since the Court is effectively fusing the issue of sex and sexual orientation together when deciding on an appropriate comparator in MacDonald’s case whereas in the Pearce case (discussed above), it was reaffirmed that ‘sex’ for the purposes of the Sex Discrimination Act does not include sexual orientation.
Even with new anti-discrimination legislation in place to protect against discrimination based on sexual orientation, if a future Court was to take the same approach to selecting a comparator as that taken in MacDonald, any claim would most likely fail as it is probably that gay men and lesbians will suffer the same variety of discrimination while an alternative category of comparator (for example straight women) are far less likely to suffer the same variety of adverse treatment.
The Suitability of a Comparator
The very need to always find an appropriate comparator poses a second difficulty to those claiming multiple discrimination as it has been acknowledged that a suitable comparator is not always available and, even if one is available, is not always appropriate. As the principle of treating like persons alike (effectively, to provide equality of opportunity) is the only formal requirement of current anti-discrimination legislation, there is a failing in the move for equality as there is no positive obligation to demonstrate a substantively fair outcome.
The very process of treating likes alike could result in inequality and thus disadvantage the very persons that the legislation was designed to protect. Hannett illustrates this by reference to the requirement of the Equal Pay Act that any claimant alleging disadvantage in pay received must show that a male comparator doing the same job would receive higher pay. According to Alison Hannett, this requirement for an actual male comparator rather than for the hypothetical comparator permitted by the Sex Discrimination Act ‘makes it impossible to challenge segregated work roles or structural disadvantages’.
In this case, the rigidity of the anti-discrimination law is actually permitting discriminatory practices with regard to pay to continue where an actual comparator is unavailable whereas if the same approach to that taken by other legislation with a similar anti-discrimination purpose was adopted, claims would be far more likely to succeed.
In discussing the same issue, Professor Nicola Lacey in her book, Unspeakable Subjects, suggests that:
'[This] illustrates rather clearly the blunt critical edges of the legislation, which cannot provide any platform for litigants to criticise the formulation of the “normal” standard: they must content themselves with arguing for assimilation to it. Complaint about formal difference rather than substantive critique is the name of the game’.
It does seem contrary to the principles of justice that, in order to succeed, people seeking to claim for discrimination they have suffered have to convince the Court that they fit within what the legislation considers to be normal rather than being able to argue that characteristics outside of the supposed ‘normal’ range are deserving of protection in their own right. If the legislation is left as it currently stands so that there is no obligation to tackle the structural disadvantages of society then those people who fit into several groups identifiable as prone to suffer discriminatory practices are bound to suffer the greatest disadvantage.
It can be seen therefore that, if finding a suitable comparator can prove difficult for those who suffer a single ground of discrimination, then it is necessarily even more difficult for those who suffer multiple grounds. Even once a comparator has been identified, the Court may take into consideration to the detriment of the claimant factors which are not actually relevant to the case at hand. It is also true that there are certain situations where treating like persons alike may actually lead to disadvantage.
References:
Lacey, N. "From Individual to Group? A Feminist Analysis of the Limits of Anti-Discrimination Legislation" in Unspeakable Subjects: Feminist Essays in Legal and Social Theory (1989) (Oxford: Hart)
Hannett, S. "Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination" (2003) 23 Oxford Journal of Legal Studies 65
