The Comparator Paradox?
The Problem Where an Appropriate Comparator Cannot Be Found
It has been claimed that attempts to address the problems caused by the comparator requirement necessarily result in a legal paradox.
It can be seen that, for many people alleging discrimination, the selection of an appropriate comparator can be difficult. Necessarily therefore, it is even more difficult to select an appropriate comparator in cases involving multiple discrimination. Judging equality must, however, be a comparative exercise since a person can only have been discriminated against if they would have been treated differently but for the social characteristic(s) in question and so some variety of measurable difference is generally required.
An Appropriate Comparator
In most cases it is appropriate for the claimant to select their own comparator and the token white male is an adequate choice as that is the social class which is most often in the most privileged position.
However, it is important to bear in mind that there are certain situations where differential treatment does not lead to disadvantage or indeed where equal treatment may in itself cause inequality.
Developing Case Law
It does seem that the Courts in the UK are beginning to recognise that such situations do occur. In Webb v EMO Air Cargo (UK) Ltd (1995) the claimant was taken on to provide maternity cover for another employee. Webb was due to be trained for six months by the employee whose job she would be covering but, after only two weeks of starting work, Webb informed the company that she too was pregnant and she was immediately dismissed.
Importantly, it had been agreed from the outset that Webb would continue to work for the company after the employee for whom she was providing maternity cover had return to work. The Court declared that disadvantageous treatment due to pregnancy should be sufficient to satisfy the Sex Discrimination Act without comparison to a man being needed. This was of course a decision of vital importance since before it, as it was impossible to find a male comparator for a pregnant woman, claimants were unable to prove that they had suffered discrimination.
The Benefits of a Flexible Approach
If judges continue and develop this flexible approach then some of the problems posed by the need for a comparator could be side-stepped. Ultimately though it would seem that, for the sake of equality and clarity, all of the anti-discrimination legislation should be brought into line with regards to the identifying of a comparator (ideally, using a more flexible approach such as that demonstrated by the hypothetical comparator sufficient for the Sex Discrimination Act) and some form of regulation developed so that claimants are able to assess their chances of success.
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
