Associative Discrimination

11 February 2013
Until recently, there was a requirement that a discrimination complainant possessed one of the protected characteristics themselves. The Equality Act 2010’s new definition of direct discrimination makes no reference to the protected characteristic of any particular person. This means that a worker experiencing less favourable treatment because of a protected characteristic does not necessarily have to have the characteristic themselves - the person might be associated with someone who has the characteristic. This is ‘discrimination by association’ or ‘associative discrimination’. The most important case of late, is that of Coleman v Attridge Law 2008, which was the catalyst for changes to legislation. Mrs Coleman’s son was born with a disability, a condition that led to severe breathing difficulties requiring specialised care. She was her son’s primary carer. She believed her employer did not want her to return to work after her maternity leave, and 3 years after her son’s birth, she took voluntary redundancy. Mrs Coleman subsequently alleged constructive discriminatory dismissal and harassment on grounds of disability. She argued that because of her association with a disabled person and the manner in which she was treated, she was left with no option but to take voluntary redundancy.  Mrs Coleman’s victory widened the scope of associative discrimination from applying to race, religion or belief and sexual orientation, to disability and all diversity strands from both an employment and service delivery perspective. An employer must not directly discriminate against or harass an employee based on their association with a protected characteristic. If an employee is either harassed or treated less favourably not because of their own protected characteristic, but because of their association with a person with a protected characteristic, they are now protected. Associative discrimination under the Equality Act 2010 applies to race, religion or belief, sexual orientation, age, disability, gender reassignment and sex.

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