Distinguishing direct and indirect discrimination: mutual exclusivity, fuzzy borders, proxies, and unreliable rubrics

Lady Hale once maintained that “Direct and indirect discrimination are mutually exclusive. You cannot have both at once.” This invites courts to make a sharp distinction between the two. A difficulty, as Advocate General Sharpston once observed, is that the distinction “lacks precision”, or is “fuzzy at the border”. The tension between maintaining mutual exclusivity over a fuzzy border has proved difficult for the senior courts, evidenced by some significant disagreements. The notable feature of this case law is the range of rubrics deployed for the function of distinguishing the two. This article concludes that as well as lacking utility, the rubrics are prone to the paradoxical result of blurring, rather than clarifying, the boundary between direct and indirect discrimination. It also finds that the use of these rubrics confuses the form-based (EU/UK) statutory schemes with the motive-based (US) approach, and in doing so, ignores clear statutory wording.