The ‘associative’ discrimination fiction: Part 1

Associative Discrimination is a consequence of the open formulas used in the UK (and EU) equality legislation to define direct discrimination. The treatment needs only to be ‘because of a protected characteristic’ (such as race, sexual orientation, etc) rather than because of his (or her) protected characteristic. Hence, a white worker dismissed for marrying a black person could sue for direct (racial) discrimination. The open formula is not limited to such cases, and so treating associative discrimination as a term of art is a mistake, as this could unnecessarily restrict the reach of the deliberately open legislative formula. This article identifies the Supreme Court judgment in Lee v Ashers as an example of this mistake. It further asserts that any compromise for conflicting rights is found in the Human Rights Act 1998, and not by distorting the definition of discrimination.