Abstract

Western liberal democracies tend to impose duties on public and private bodies that are often formulated as an obligation not to discriminate. For instance, the European Union prohibits direct and indirect discrimination on certain grounds in certain contexts. Under this model, indirect discrimination involves a measure that, although it does not directly (i.e. explicitly) discriminate on the basis of a proscribed ground, produces a disparate impact that correlates with such a proscribed ground. Indirect discrimination is generally viewed, both conceptually and politically, as subordinate to direct discrimination. Professor John Gardner has argued that anti-discrimination law is justified on the basis of duties to respect other people's autonomy. On the base of this analysis, he argues that indirect discrimination is a secondary concept to the paradigm wrong of direct discrimination. I contend in this article that, if one adopts Gardner's autonomy-based analysis of anti-discrimination law, indirect discrimination is not a secondary concept to direct discrimination. Further, I argue that autonomy does not provide a convincing justification for the prohibition of either direct or indirect discrimination. I tentatively suggest, however, that the widespread impact of certain types of discrimination (alluded to by Gardner) may support an equality-based justification for the prohibition of both direct and indirect discrimination