Indirect discrimination is where a seemingly neutral practice, policy or rule that applies to everyone, has a worse effect on, or consequences for, some people as compared to others, due to their particular characteristics (also called protected characteristics).
However, even in cases where there is a negative effect or consequences, it might not result in discrimination, if the treatment is justified. To prove the justification, it must be shown that there is a legitimate aim to a certain practice (a real need) and that the practice is proportionate to that aim. Namely, that it is necessary and that there is no alternative means available that is less discriminatory.
example Cases of indirect discrimination can include a job requirement to speak an official language at the level of a native speaker, which may put minority language speakers at a disadvantage, a requirement for a specific height for a job which may disadvantage women, or an employer’s requirement to meet a physical fitness test, which might work to the disadvantage of older people.
In practice, it is sometimes difficult to distinguish between indirect discrimination and allowed differential treatment.
example An employer may legitimately establish requirements related to official language proficiency for those employees who regularly work with clients. But, the same requirement may be too high and constitute indirect discrimination on the grounds of ethnic origin, if established for persons cleaning back offices, where there is no regular communication with other people.
Articles 2, 26
13 November 2007
23 October 2003
13 May 2005