Skip Navigation


Oxford Journal of Legal Studies Advance Access originally published online on May 29, 2007
Oxford Journal of Legal Studies 2007 27(3):537-553; doi:10.1093/ojls/gqm008
This Article
Right arrow Full Text
Right arrow Full Text (PDF)
Right arrow All Versions of this Article:
27/3/537    most recent
gqm008v1
Right arrow Alert me when this article is cited
Right arrow Alert me if a correction is posted
Services
Right arrow Email this article to a friend
Right arrow Similar articles in this journal
Right arrow Alert me to new issues of the journal
Right arrow Add to My Personal Archive
Right arrow Download to citation manager
Right arrowRequest Permissions
Google Scholar
Right arrow Articles by Doyle, O.
Right arrow Search for Related Content
Social Bookmarking
Add to CiteULike   Add to Connotea   Add to Del.icio.us  
What's this?

© The Author 2007. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org

Direct Discrimination, Indirect Discrimination and Autonomy

Oran Doyle*

* Lecturer in Law, Trinity College, Dublin.

Correspondence: Email: ojdoyle{at}tcd.ie


  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.

A version of this article was presented to the ‘Equality and Social Inclusion: Developing Alternatives’ conference at Queen's University, Belfast on 2 February 2006.

I am grateful to Tom McMorrow for research assistance and to Paul Brady who commented on an earlier draft of this article.


Add to CiteULike CiteULike   Add to Connotea Connotea   Add to Del.icio.us Del.icio.us    What's this?




Disclaimer:
Please note that abstracts for content published before 1996 were created through digital scanning and may therefore not exactly replicate the text of the original print issues. All efforts have been made to ensure accuracy, but the Publisher will not be held responsible for any remaining inaccuracies. If you require any further clarification, please contact our Customer Services Department.